Opposition — Simkovich v. United States

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' No. 77-1217 | |}. MAY & 1878

ee OAK, IR, CLERK |

In the Supreme Court of the Huited States

Octoser TERM, 1977

CHARLES SIMKOVICH, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF®APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

Wape H. McCree, Jr.,

Solicitor General,

M. Carrk FERGUSON, |.

Assistant Attorney General,

Ropert E. LInpsay,

Attorney,

Department of Justice,

Washington, D.C. 20530.

Inu the Supreme Court of the Hnited States

OcTOBER TERM, 1977

No. 77-1217

CHARLES SIMKOVICH, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The court of appeals affirmed without opinion (Pet. 2).

JURISDICTION

The judgment of the court of appeals was entered on

January 6, 1978, and a petition for rehearing was denied

on February 14, 1978. The petition for a writ of certiorari

was filed on March 2, 1978. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether petitioner was entitled to be represented at

trial by two disbarred attorneys.

(1)

2

2. Whether comments to the jury by the district court

and the prosecutor concerning petitioner's desire to be

represented by two disbarred attorneys constituted

reversible error.

3. Whether petitioner’s conviction should be reversed

because of alleged defects in the service of the summons

following his indictment or in his arraignment.

4. Whether the district court erred in refusing to.

suppress bank records obtained through use of Internal

Revenue Service summonses.

5. Whether the evidence was sufficient to support

petitioner’s convictions.

STATEMENT

After a jury trial in the United States District Court for

the Western District of Pennsylvania, petitioner was

‘convicted of willfully failing to file personal income tax

returns for the years 1970-1972, in violation of 26 U.S.C.

7203 (App. 5a-7a, 159a-160a).! He was sentenced to two

years’ imprisonment and was fined a total of $22,500 (id.

at 172a-173a). The court of appeals affirmed (Pet. 2).

The evidence at trial established that petitioner, a

chiropractor, filed income tax returns correctly reporting

his income for the years 1967 and 1968 but then failed to

file proper returns for the subsequent seven-year period,

1969 through 1975 (App. 69a-73a). For 1969, petitioner

filed the front page of a Form 1040 showing only his

name, address, social security number, and occupation

(id. at 115a). Attached to the form was material indicating

petitioner's belief that only gold and silver coins were

lawful money. Petitioner reported that he had received ten

“App.” refers to the appendix filed in the court of appeals.

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dollars in silver dimes in 1969. The Internal Revenu

Service returned these documents to petitioner with a

letter advising him that it was not a proper tax return,

requesting that he file a proper return, and warning that if

he did not do so he might be subject to criminal

prosecution (id. at 115a-116a). Petitioner nonetheless

failed to file a proper return (id. at 116a).

Petitioner also did not file a tax return for the year

1970 (App. 116a-117a). For 1971 and 1972, petitioner

filed documents similar to those he filed for 1969,

reporting that he had received $525 in silver dimes in 1971

and $30 in silver quarters and $18 in silver dimes in 1972

(id. at 117a-118a). These materials were again returned to

petitioner with letters similar to that sent him after receipt

of the materials filed for 1969 (id. at 118a-119a).

The evidence established that petitioner received a gross

income of $40,658.12 in 1970, $36,887.51 in 1971, and

$26,502.20 in 1972 (App. 127a-133a).

ARGUMENT

1. Petitioner argues at great length (Pet. 11-40) that the

district court erred in refusing to permit him to be

represented by two disbarred attorneys, Jerome Daly and

Gordon Peterson. But the court’s ruling was correct, since

it has consistently been held that a defendant has no right

to be represented by a person not licensed to practice law.

See, e.g., United States v. Pilla, 550 F. 2d 1085, 1093

(C.A. 8), certiorari denied, 432 U.S. 907; United States v.

Afflerbach, 547 F. 2d 522, 525 (C.A. 10), certiorari

denied, 429 U.S. 1098; United States v. Kelley, 539 F. 2d

1199, 1201-1203 (C.A. 9), certiorari denied, 429 U.S. 963;

United States v. Jordan, 508 F. 2d 750, 753 (C.A. 7),

certiorari denied, 423 U.S. 842. Petitioner's reliance (Pet.

14-15, 24-26, 29) upon Faretta v. California, 422 U.S. 806,

is misplaced. Faretta established only that a defendant in

a criminal case has the right to represent himself without

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the assistance of au attorney; it did not grant a defendant

the right to be represented by a person who is not a

member of the bar. See United States v. Wilhelm, 570

F. 2d 461, 466 (C.A. 3).

2. Petitioner also asserts (Pet. 44-45) that he was

prejudiced by the district court’s and prosecutor's

references to the fact that he desired to be represented by

the disbarred attorneys. The court’s remarks, however,

were intended merely to explain to the jury why petitioner

was not being assisted by counsel and were made in direct

response to petitioner’s repeated statements that the court

had deprived him of his right to counsel and that he was

not qualified to represent himself (App. 73a-74a, 77a, 79a,

106a-107a).2 Nor was there anything objectionable about

the prosecutor’s remark, made at the outset of his closing

*For example, after the prosecutor had examined the first

government witness and the district court had indicated that

petitioner could cross-examine the witness, the following colloquy

occurred (App. 73a-74a):

MR. SIMKOVICH: Your Honor, | know that my counsel,

Jerome Daly and Gordon Peterson, know what to say and what

questions to ask. | do not know what to say, | am not qualified.

THE COURT: You may cross examine at this time, if you

wish. Members of the Jury, in case you don't understand the

problem we have here, the defendant has two attorneys from

outside the State whose names have been stricken from the rolls

in their home states and, hence, under our rules are not

authorized to appear in this Court and we have so ruled with

respect to them. We have told the defendant in some of the

opening statements that he is free to engage the services of any

Member of the Bar who is admitted to practice in this District in

accordance with our rules and he has not seen fit to do so and he

has been further told that if he is indigent we have ample

means, the Government will supply an attorney for him if he

can file the necessary statements to show that he is indigent,

without assets to hire an attorney and this has not been done.

And so we have ruled that he has, therefore, waived his rights to

the assistance of counsel and the only thing we can do is proceed

in this manner, giving him in this case all the rights he has if he

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argument, “that this trial has been unusual because the

defendant has insisted throughout that he has the right to

be represented by two individuals who have been

disbarred as attorneys” (App. 138a). The comment was

nothing more than a harmless statement of the obvious,

since the jury already was well aware of petitioner's

insistence that Daly and Peterson be allowed to represent

him.

3. Petitioner contends (Pet. 41-44) that the summons

issued after he had been indicted was improperly served

upon him by mail and that he was illegally arraigned

before a magistrate. These claims were correctly rejected

by the court of appeals and do not warrant further review.

Rule 4(d\3) of the Federal Rules of Criminal Pro-

cedure, as incorporated by reference into Rule 9(c)1),

provides that “{t}he summons shall be served upon a

defendant by delivering a copy to him personally, or by

leaving it at his dwelling house or usual place of abode

with some person of suitable age and discretion then

residing therein and by mailing a copy of the summons to

the defendant’s last known address.” Service of a

summons solely by mail, as occurred in this case,

obviously does not comply with the rule, but petitioner

appeared in response to the summons, posted bond

(App. 2a), and subsequently appeared for trial. The

district court thus had jurisdiction over petitioner

regardless of any defects in the procedure by which he was

wanted to represent himself, which he has the right to do if he

chooses. Under the decisions of the U.S. Supreme Court a

person is entitled to represent himself or to be represented by an

attorney duly admitted to practice in this District. He has not

come forward with any such attorney either as an indigent or

some attorney that he has engaged and so that is the reason why

we are proceeding in this manner.

3Indeed, it was petitioner who had first brought the matter to

the attention of the jury during voir dire (April 11, 1977, Tr. 4-6).

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brought into the presence of the court. See, e.g., Frisbie v.

Collins, 342 U.S. 519, 522; Ker v. Illinois, 119 U.S. 436,

444; United States v. Lovato, 520 F. 2d 1270, 1271 (C.A.

9), certiorari denied, 423 U.S. 985; United States v.

Andreas, 458 F. 2d 491, 492 (C.A. 8), certiorari denied,

409 U.S. 848.

By the same token, there is nothing to petitioner's

assertion that he was improperly arraigned before a

magistrate. Although Rule 9b)(2), Fed. R. Crim. P.,

provides that the summons shall require “the defendant to

appear before the court or, if the information or

indictment charges a minor offense, before a United

States magistrate at a stated time and place,” and

although petitioner was not charged with a minor offense,

28 U.S.C. 636(b) permits district judges to delegate to

magistrates certain pretrial functions in criminal cases.

Rule 6(c) of the Rules of the United States District Court

for the Western District of Pennsylvania (United States

Magistrates) expressly authorizes magistrates to “{c]on-

duct arraignments in cases not triable by the Magistrate

to the extent of taking a not guilty plea or noting a de-

fendant’s intention to plead guilty or nolo contendere and

ordering a presentence report in appropriate cases.” See

Carter v. United States, 388 F. Supp. 1334, 1337-1338

(W.D. Pa.), affirmed, 517 F. 2d 1397 (C.A. 3). Moreover,

even assuming that petitioner was improperly arraigned

before a magistrate, a not guilty plea was entered on his

behalf and he was then tried by the district court without

raising any further objection to the arraignment. See, e.g.,

Garland v. Washington, 232 U.S. 642, 646-647; Thomas v.

United States, 455 F. 2d 469, 470 (C.A. 5), certiorari

denied, 409 U.S. 859; Sweeney v. United States, 408 F. 2d

121, 123 (C.A. 9). Petitioner, in any event, has not

asserted that he was prejudiced by the manner in which he

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was arraigned. See Garland v. Washington, supra, 232

U.S. at 644-645; United States v. Rogers, 469 F. 2d 1317,

1317-1318 (C.A. 5).4

4. Petitioner claims (Pet. 45-53) that the Internal

Revenue Service violated his rights when it obtained bank

records through use of administrative summonses issued

without notice to him. But an I.R.S. summons for the

production of bank records does not violate the

customer’s Fourth Amendment rights (see United States

v. Miller, 425 U.S. 435, 440-443), nor does it infringe

upon the customer's Fifth Amendment privilege against

self-incrimination (California Bankers Assn. v. Shultz,

416 U.S. 21, 55).5 Furthermore, at the time that the

summonses in this case were issued, there was no

requirement that a bank customer be notified of the

request. See United States v. Continental Bank and Trust

Co., 503 F. 2d 45, 49 (C.A. 10). See also United States v.

Miller, supra, 425 U.S. at 443 n. 5.°

‘Petitioner also asserts (Pet. 41, 44) that he was not arraigned

within 10 days of the filing of the indictment, as required by 18

U.S.C. (Supp. V) 3161(c). The indictment was filed on December 7,

1976, and petitioner was arraigned on December 27, 1976. The

Speedy Trial Act imposes no express sanction for a delay in arraign-

ment, however, and petitioner has shown no prejudice from the delay.

Hence, he is not entitled to dismissal of the indictment. See United

States v. Butler, 434 F. 2d 243 (C.A. 1), certiorari denied, 401 U.S.

978.

SContrary to petitioner's assertion (Pet. 51), it was a Fifth

Amendment challenge to the reporting requirements of the Bank

Secrecy Act of 1970, 84 Stat. 1114, not to the recordkeeping

requirements of the Act that petitioner challenges (Pet. 51-52),

which this Court viewed as premature in California Bankers Assn.

v. Shultz, supra, 416 U.S. at 71-75.

*Notice to a taxpayer is now required by 26 U.S.C. 760%a), as

added by Section 1205(a), Tax Reform Act of 1976, Pub. L. 94-455,

Petitioner also argues (Pet. 46-47) that the summonses

were improperly employed solely to further a criminal

investigation. The question when the Internal Revenue

Service may utilize an administrative summons in aid of a

criminal investigation is currently before the Court in

United States v. LaSalle National Bank, No. 77-365,

argued March 29, 1978, but there is no need to hold this

petition pending a decision in that case. The district court

concluded, after 2n evidentiary hearing, that the sum-

monses had been issued prior to the time that the special

agent determined to recommend a criminal prosecution

and at a time when the investigation was continuing for

both civil and criminal purposes (App. 46a-47a). Thus,

even under the restrictive and, we believe, incorrect

standard applied by the Seventh Circuit in LaSalle

National Bank (554 F. 2d 302), the summonses in this

case were proper.

5. Finally, there is no merit to petitioner’s contention

(Pet. 53-55) that the evidence was insufficient to support

the verdict. Although petitioner asserts (Pet. 53) that he

was “charged with failing to file a return and swearing

under criminal penalties that it [was] perfect * * *” and

that there was no evidence that his records were adequate

to enable him to file a return that was complete and

correct, the government need only prove in a prosecution

under 26 U.S.C. 7203 that the defendant had sufficient

gross income to require him to file a return, that he knew

of his obligation to file a return, and that he willfully

failed to comply with that obligation within the time

90 Stat. 1699, when the I.R.S. serves summonses on certain third-

party recordkeepers. That Section became effective on February 28,

1977 (Section 2(b), Pub. L. 94-528, 90 Stat. 2483), well after the

dates of the summonses here (App. 46a).

Jenkins v. McKeithen, 395 U.S. 411, on which petitioner relies

(Pet. 47-49), is not to the contrary. That case involved a due process

challenge to the notice rules of a commission that clearly exercised an

adjudicatory function. The function performed by the Internal

Revenue Service is purely investigatory, a situation that the Court

explicitly distinguished in Jenkins (395 U.S. at 426-427).

—

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allowed by law. United States v. Matosky, 421 F. 2d 410,

413 (C.A. 7), certiorari denied, 398 U.S. 904.’ The proof

at trial plainly satisfied that burden.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Wave H. McCree, Jr.,

Solicitor General.

M. CARR FERGUSON,

Assistant Attorney General.

RosBert E. LINDSAY,

Attorney.

May 1978.

Petitioner's claim (Pet. 54-55) that the tax filing requirement

violates the Fourth Amendment and that Section 7203 accordingly is

unconstitutional is frivolous. The statute requiring the filing of tax

returns (26 U.S.C. 6012) is a reasonable and proper exercise of the

constitutiona! power of Congress to lay and collect taxes (Article I,

Section 8) and obviously does not involve an unreasonable search or

seizure. Cf. United States v. Acker, 415 F. 2d 328, 329 (C.A. 6),

certiorari denied, 396 U.S. 1003.

DOJ-1978-05 ~