Petition — Warinner v. United States

IN THE

SUPREME COURT OF THE UNITED STAB Fe, :

OCTOBER TERM, 1979 SOCAK, JR, CLERK |

o. 29-989 |

LARRY L. WARINNER,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT

No. 79-1327

William A. Cohan

Penthouse Suite

50 So. Steele Street

Denver, Colorado 80209

Attorney for

Defendant-Petitioner

i

TABLE. OF .CONTENTS

Page

Opinion Below e®eeesvreereneeneeeegceeeesvpeenagqgeeeseeeese 2

Jurisdiction e®eeaqe@eenae@eee0e eee@aenpenstee7neee7#eee#eeeee#ees 2

Questions Presented and Why Writ

Should Be Granted eeeeeaee0aeeeseenraenepeaeeseeseeeesee 2

Constitutional and Statutory

Provisions InvOlved .cccccccccccccccveccaces LO

| Statement of the Case e@eee#e545+5+eseaeesteeeoeegee#*e#ee#eee#ee##?e#e 20

rr Ms cee cleeecseieteccece 2m

Argument and Reasons for Granting

the Writ and Questions on Review .......-+... 31

Conclusion e*eeee7sesvse3#seeenee7nenee3neeeeneenseeeeneenees 78

APPENDICES

Appendix A: Opinion of the United

States Court of Appeals for the

Eighth Circuit eeeaeenree8nkee7neeeeeeeeee7#e#nteeeee7nyeoe#e#e#e#e Post

Appendix B: Constitutional and

Statutory Provisions Involved........-c.ee-

ii

TABLE OF AUTHORITIES

hme — Page

Abood v. Detroit Bd. of Ed,

431 U.s. 209,

52 L.Ed.2d 261,

97 S.Ct. 1782 (1977)

Andresen v. Maryland

/427 U.S. 463 (1976) —

Beckwith v. U.S.

425 U.S. 341 (1976)

WEEUTTECEREEEEEERELE EES 43

TEETER TELELTELETET TET CL

Sadie he 53,55,66

- Boyd v. U.S.

116 U U. S. S. 616 (1886) TeTrerrTrcrrTT ty Tee ere

42,57,64-67,52,60

Brewer v. Williams

430 U.S. 387,

97 S.Ct. 1232

51 L.Ed.2d 424 (1977)

Burdeau v. McDowell

256 U.S. 465 (1921)

Byars v. U.S.

273 U.S. 28 28 eeeeeesees#este5«eese548ee#e#ee*e#eee#e#e#8#8ees#ee#8et ese e*eee#ees 59

Cantwell v. Connecticut

310 U.S. 296

84 L.Ed. 1213

60 BsGee 900 eeeeveeevn eevee evpaevpeeevp@aespevegeene ep eee eee 44

Corngold v. U.S.

_ 367 F. 2d 1 ~ {CA 9, 1966)

Columber Ve Connecticut

367 U.S. 568.

81 S.Ct. 1860 -

66 L.Ed.2da 1037 (1961)

weocceccecoceccancececcc co 94760

eeeseeoeeeneenskeeneeneee#eeee 32,37,39

Tree eee 40

yeTreTrT TT Te eT 55

pecececceceeeeeeeseeaecstegoa,

Page

Duren v. Missouri

99 S.Ct. 1623

58 L.Ed.2d 317 (1979)

Elrod v. aes

| Car aes, ee

49 L. Mo 2d 547

97 $.Ct. 2763 (1976)

Gambino v. U.S.

275 U.S. 310 (1927)

Gouled ve U.S.

255 U.S. 298 (1921)

Hancock v. White

378 F.2d 479 (CA 1)

Johnson v. New Jersey

384 U.S. 719

86 S.Ct. 1772

16 L.Ed.2d 882 (1966)

Kirby v. Illinois

406 U.S. 682

92 S.Ct. 1772

32 L.Ed.2d 411 (1972)

Knoll v. FTC

~ 397 F.2d 530 (CA 7, 1968)

Lustig v. U.S.

338 U.S. 74 (1949)

Mapp v. Ohio

367 U.S. 643

81 S.Ct. 1684

6 L.Ed.2d 1081 (1961)

Massiah ve. U.S.

377 Ushs 201

87 S.Ct. 1199

12 L.Ed.2d 246 (1964)

e®eeeeoeeenee8neegeneeaeeneeeeeee

13,77

eeo@ewetvpaeasepaeangevnegeeerees eee 44

*e@eat@ee@taqeaeaetpeese ase aee se 56

eeeepeaeereeseseeneereenreeeeee e828 63

e@eeeeeneeveeeeveeaesteeereeeee82828 52

eeeeoeeeesteesteeneene*eeeeee 50

eeeeee0asee0#eeee*ee*eeeee ee 8 50

eee7se7ee#ers#8ere eeee7#2es 56

@eeeeteoeae@#@eteeaenwmeoee sp eeeenseeeeee 58

eeeeteeeeseeaeeeeseeeee 40

whos eate ce beet ¥eneree

Page

McLeod. v. Ohio

381 U.S. 356 CASE. O OS OP RD OS Te ee ae 52

Meister Ve Commissioner

504 F.2d 505: (CA 3, 1974)

Miranda v. Arizona

384 U.S. 436

84 S.Ct. 1602

16 L.Ed.2d 694 (1966)

hy v. Waterfront Comm'n

378 U.S. 52

12 L.Ed.2d 678

84 S.Ct. 1594 (1964)

O'Connor v. New Jersey

405 F.2d 632 (CA 3) eeeeeeee eeeeeeeeeev eee 52

Sherman v. U.S.

356 U.S. 369 (1958)

Spano v. N.Y.

360 U.S. 315

3 L.Ed.2d 1265

70 S.Ct. 1202 (1959)

Stanley v. Georgia

394 U.S. 557

22 L.Ed.2d 542

eS ee er ere ee ee ef cactcansec OF

Taylor v. Louisiana

419 U.S. 522 (1975)

U.S. v. Brevik

422 F.2d 449 (CA 8, 1970)

0606008 60a hh 00 ee

60 06¥900096045846604h065 00088

@eeeaeevee@teeteaaneepeeeeseseeeese 46

eeesveeeneeeenteeeeseestenseeee 60

ES OE SOS DSS Oe Pee oe ae ees 60

06 006% tees sb be6-+600e eee

verre te ete

eoeepeaeeav @2teeeeeoe280808 60

447 F.2d 903 (CA 5, 1971)

“475 F.2d 469 | 52

475 .2d 469 (CA 8, 1973) eeseee@aeeegeeeseese#eeses

ee he

Page

U.S. v. Catlett

584 F.2d 864 (CA 8, 1978) cence rcncaceseccs 008,69

70

U.S. v. Crisp

5934 F.2d 354 (CA 7) eeestreveaeseeeees errr Sere Tee ee

U.S. v. Echols

477 2d 37 (CA 8, 1973) Fee eer Eee eee re Rees Pe

i alten pcs 32, 38, 41

U.S. v. Haes

See eee ee TON OL AOTT): ok cc icccuecavcessascdte ee

| Hy 39,41,46,48

U.S. v. Hiken

458 F. 2d 24 (CA 8, 1972) evccececaccecececc ce 046,48

U.S. v. Jordan

Dol Fe 2d 1032 (CA 5, 1977) rt ere Te ee ee ee ee

U.S. v. Kell

529 F.2d 365 (CA 8, Es 6 dike he Ru a ee Oe ee

U.S. v. MacLeod

i oo gt. Oe FET st en eee

V

4

U.S. v. Newton

See ae Base (CA 7, U9TSD ~ oc SSviiccc ccs are.

U.S. v. Oaks

508 F.2d 1403 (CA 9, 1974) ...... veeke weed Thee

Pe Oe Ve Ojala

esecescveccccc 0068,69, 70

1 U.S. 423

-Ct. 1637

-Ed.2d 366 (1973)

. ve Sacco

(428 F.2d 264 (CA 9, 1970)

U.S. v. Sherwin

539 F.2d 1 (CA 9, 1966)

TTT eC ee OT Pee eT TS

° 5666 0646064660 603 6sUe

eT Te Cee ETT ES CCT ET

ee eee

. Page

U.S. v. Soto

504 F.2d 557 (CA. 5, 1974) eeesoeeeseeesseeeeenvreeee8 60

U.S. v. Steele

461 F -2d 1148 (CA 9, 1972) ete oes bow eee des 69

U.S. v. Swanson

509 F.2d 1205 (CA 8, 1975) woeveceveeees + +68,69,75

U.S. Vv. Wade

Weeks v. U.S.

232 U. as 383

58 L.Ed. 652

34 S Cts 341 *eeeeseeoeeeseeesrteesresepaeaensnseesesesvreeseenereeeeee 59

West Virginia Bd. of Ed. v. Barnette

319 U.S. 624

87 L.Ed. 1628

63 S.Ct. 1178 ..ccccecsccccccccevscccsescccee 6

Wong Sun v. U.S.

371 U.S. 471

83 S.Ct. 407

9 L.EG.2d 441 (1962) w.cccccccccccccccces esese 40

CONSTITUTIONAL PROVISIONS

United States Constitution

Fourth Amendment TUPEUPUPUCEETECRECEEEE TET eee

Fifth Amendment TREREREEETETELETETEPEE EE Ce

Sixth Amendment Cebas «ek eh as 64486 de 64948450

Page

STATUTES :

Internal Revenue Code Regulations

§31.3402(£) (2)-1(e) WETETTTCEELELT TLE TS ee

15,22,37,57

§31.3402(£) (5) -1 @eneeanrevraegqeeeae eae eee eeene 17

18 U.S.C. §1007 eeeee eee qeevee ee eereeeeeereeeas 15,20

26 U.8. + §7205 $6.0 ROK EACEHSWEOES O66 6 K06 CSUR ETO

~31,47,71

ADDITIONAL AUTHORITIES:

Proposed New Federal Criminal Code (1971),

Final Report of the National Commission

on Reform of Federal Criminal Laws §720 ....... 61

Model Penal Code, America Law Institute,

§2.13 (1962) eeeesecs#*eeesee#se#e#ee##see#eenseteeseseee#e#nee*eessee#eteseeste?e 8 61

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

LARRY L. WARINNER,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT

Petitioner, Larry L. Warinner, by his attor-

ney, prays that a Writ of Certiorari issue to

review the opinion of the United States Court of

Appeals for the Eighth (8th) Circuit entered

October 11, 1979, petition for rehearing denied

November 14, 1979. The issuance of mandate has

been deferred until December 14, 1979, pending

the filing and disposition of this Petition.

i

OPINION BELOW

The opinion of the United States Court of

Appeals for the Eighth Circuit, which is attached

hereto as Appendix A, was filed October ll, 1979,

petition for rehearing denied November 14, 1979,

with mandate stayed until December 14, 1979,

pending filing and final disposition of this

Petition.

JURISDICTION

Jurisdiction of this Honorable Court is in-

voked pursuant to 28 U.S.C. §1254(1).

QUESTIONS PRESENTED AND

REASONS WRIT SHOULD BE GRANTED

1. Was Defendant Warinner's W-4E ---

the filing of which provided the

basis for his indictment ---

obtained in violation of his

Fourth, Fifth and Sixth Amend-

ment rights?

2. Was it error to deny Defendant

an evidentiary hearing to deter-

mine whether his prosecution

was the product of unconstitution-

al discrimination, where documentary

ae

evidence and testimony established

a prima facie case that he was

charged because of his exercise

of First Amendment freedoms?

3. Where all but registered voters

are excluded from jury service

was the Defendant deprived of

a jury selected from a fair cross

section of the community?

I

After Defendant Warinner had become the

focus of a criminal investigation, one of his

employer's payroll clerks named Kitty Essman

instructed him by letter that: (1) "due to a

letter received from the Internal Revenue Service

-»- please forward the completed new forms W-4E

or the W-4 form without any alteration or

remarks (emphasis in original) as soon as possible";

and (2) "failure to submit the new form will re-

sult in Federal tax deduction based on [a] single

[person] with no exemption starting September 21,

1976". As instructed by the letter from Essman,

Defendant Warinner submitted to his employer a

form W-4E "without any alteration or remarks" on

3.

September 15, 1976. This act constitutes the

gravamen of the indictment. Submission of a

W-4 or W~4E to his employer by Warinner "without

any alteration or remarks was required by that

portion of IRS regulation §31.3402(f£) (2)-1(e)

which provides that "Any alteration of or un-

authorized addition to a withholding exemption

certificate shall cause such certificate to be

invalid"; but §31.3402(f£) (2)*l(e) also provides

the following:

"Any witholding exemption certificate

which the employee clearly indicates

to be false by an oral statement or by

a written statement made by him to the

employer on or before the date on which

the employee furnished such certifi-

cate is also invalid. If an employer

receives an invalid withholding

exemption certificate, he shall

consider it a nullity for purposes

of computing withholding; he shall

inform the employee who submitted the

certificate that it is invalid, and

shall request another withholding

exe tion certificate from the emp-

loyee. If the employee who sub-

mitted the invalid certificate fails

to comply with the employer's request,

the employer shall withhold from the

employee as from a single person

claiming no exemptions."

4.

In this case the Defendant complied with

the employer's request; notwithstanding his com-

pliance, the employer thereafter withheld federal

income taxes from Warinner's paycheck on the

basis of a single person with no exemptions,

despite the employer's knowledge that Warinner

supports his wife and their two minor children.

Simply stated: the IRS ordered Warinner's employer

to ignore requests that no federal income tax be

withheld from Warinner's wages and went so far as

to withhold more than was proper - the maximum

amounts, i.e. based on a single person with no

exemptions, were, and still are, withheld from

his paychecks. But just to teach Warinner a

lesson, the IRS has added insult to injury by a

criminal prosecution of a taxpayer who has been

and continues to be penalized for each and every

paycheck. The penalties are imposed because

Warinner refuses to accede to the IRS demand

that he fill out a W-4 form on which he acknow-

ledges his liability for federal income tax. In

5.

this the IRS goes too far.

"If there is any fixed star in our

constitutional constellation, it is

that no official, high or petty, can

prescribe what shall be orthodox in

politics, nationalism, religion, or

other matters of opinion or force

citizens to confess by word or act

their faith therein." West Virginia

Bd. of Ed. v. Barnette, 319 U.S.

624, 642, 87. L.Ed. 1628, 63 S.Ct.

1178; Abood v. Detroit Board of

Education, 431 U.S. 209, 52 L.Ed.

2d 261, 284, 97 S.Ct. 1782.

Furthermore, the opinion of the Court of

Appeals misapprehends the holding of the United

States Supreme Court in Boyd v. United States,

116 U.S. 616 (1886); at page 6 of its opinion the

Court of Appeals held:

"In Boyd the Supreme Court declared

unconstitutional a subpoena of an

invoice which showed that importers

were fraudulently claiming excess

duty exemptions. Boyd, however, in-

volved compulsory production of

evidence under a subpoena. Here,

Warinner's filing of the form W-4E

was not compulsory, but rather

entirely voluntary. Appellant was

not obliged to. file a form W-4E to

carry out his tax protest. He could

have filed a form W-4 and paid his

income tax and then filed for a

refund at the end of the year. True,

6.

€

he would have been denied the use of single person with no exemptions; in fact, there

his money for a time; but that econo- ;

mic compulsion does not change the was nothing voluntary about Warinner's filing,

essentially voluntary nature of his

act. Warinner's voluntary filing since 26 U.S.C. §7205, under which he was con-

simply is not entitled to fourth c

par os: ig protection." [emphasis victed provides in pertinent part "Any individual

adde

required to supply information to his employer ...

The portion excerpted establishes an erron- q PPp+y mp Loy

who willfully supplies false or fraudulent in-

eous reading of Boyd precisely because there was eee npsasiaer aka nei

i : formation thereunder which would require an

no "'compulsory production’ of evidence under a

A increase in the tax to be withheld...shall... be

subpoena" in Boyd; but the Boyd Court found

fined not more than $500., or imprisoned not more

“economic compulsion" that offended the Fourth > ‘ °

than o or both." The “nullity" filed b

and Fifth Amendments because if the parties agwipgaett genet ” Peers oe Y

Warinner actuall roduced the maximum tax to be

served with the subpoena refused to produce the 7P

: : : ; , withheld. The W-4E for which he was convicted

invoice, their property - in this case plate

was a nullity because of the documents he had

glass - was forfeited. There was no other = a ' agesnaresdiemal

furnished with iously filed W-4E' da

"compulsion" attached to the subpoena, i.e. the es ae sap aclemniong deem jareamne 7 on

statements he had made to his employer in con-

sole consequence of disobedience of the subpoena Mt

: : nection therewith. These documents and state-

was forfeiture of the property. Warinner's

agi ments indicated that the W-4E was "false" for

position was functidnally identical, i.e. failure

: Pa Py

to file his W-4E would result in forfeiture of ee eee eng pursuant ‘to

IRS lati i if i

his property because withholding from his pay- regulations and, accordingly, nullified any

check would otherwise have been based on a subsequent W-4E filed by Warinner based on the

position he espoused orally and in those documents

7. 8.

submitted to his employer. 31.3402 (£) (2)-1(e).

Proof of the "null". value of all the W-4E's sub-_

mitted subsequent to the W-4E filed with attached

protest material is conclusively established by .-

we IRS, which ordered North Central Airlines

, Warinner's W-4E's and withhold from

his wages as if he were single with no exemptions.

In order to reach its results the Court of

Appeals misstates undisputed facts adduced at

trial regarding the relationship between the

IRS and Ms. Essman. At page 5 of its opinion

the Court of Appeals incorrectly asserts that

"Kitty Essman's dealings with Warinner were

also conducted without direct instigation by or

participation of government agents. Although

the IRS informed Ms. Essman of the potential

invalidity of Larry Warinner's tax withholding

form, the IRS did not ask her to request that

Warinner file a new form W-4E." These state-

ments stand in diametric opposition to undis-

puted facts elicited at trial and the clear

9.

command of §31.3402(f) (2)-l(e), but they pro-

vide the factual foundation for the holding of

the Court of Appeals:

"Appellant's position, however, is

untenable. In United States v.

Echols, 477 F.2d 37 (CA 8, 1973),

this court recognized the general

rule that a search will be consi-

dered invulnerable to fourth

amendment attack so long as the

search is conducted for private

purposes and without instigation

or participation of government

agents."

The Essman letter to Warinner that produced

the "crime" here at issue, i.e. the filing of a

W-4E which was and is a nullity, was sent solely

because the IRS instructed her employer to dis-

regard Warinner's previously filed W-4E and the

regulations compelled the employer to notify

Warinner that his W-4E was disregarded. The

criminal investigation had concededly focussed

on Warinner during April of 1976, and the

Essman letter was sent in August - after the IRS

had 1) instructed the employer to disregard

Warinner's W-4E filed in April and 2) referred

10.

the employer to §31.3402(f) (2)-1(@), which re-

quired the Essman letter. That being the case,

can it be seriously contended that this was done

“for private purposes and without instigation

or participation of government agents"?

It

The Court of Appeals' determination at

pages 8 and 9 of its opinion "that appellant

did not establish a prima facie case of selective

prosecution sufficient to warrant an evidentiary

hearing" is incorrect because, although appellant

“failed to demonstrate conclusively that his

election was based impermissibly on exercise of

his first amendment rights", that failure was

caused by the refusal of the magistrate to per-

mit Defendant's counsel to question the Ins

witnesses with knowledge of how Warinner came

to the attention of the IRS. Warinner eould

have established that "his selection was based

impermissibly on exercise of hig firth amend«

ll.

ment rights" if he had been permitted to inquire

into the source which engendered the investi-

gation conducted at North Central Airlines which

yielded Warinner's W-4k, The testimony of the

agents at the hearing held Vebruary 19, 1979,

before Magistrate J, Barl Cudd indicated that

undercover informants had been used to identify

"tax protestors” by infiltrating meetings of

"tax protest" groups. The undersigned believes

that this undercover activity led to the North

Central Airlines investigation, the cause of

which was never explained, and Warinner's Viret

Amendment rights have been violated because of

the penalty imposed upon him for eritieizing

government policies, See pp. 73-98 of the

Transeript of proceedings held Vebruary 19,

1979, whieh conaiats of disingenuous testimony

of two IRB Intelligence agents to the effeet

that Warinner's April, 1976, We4t was discovered

during 4 "routine eheak", Defendant's counsel

was not permitted to question the agent whe

La,

conducted the "routine check" to see how or why

it had been undertaken.

Itt

This Court should reconsider the Court of

Appeals holding that exclusion of all but

registered voters did not violate Warinner's

right to a jury comprised of a fair cross-section

of the community, particularly in the aftermath

of the recent decision of the Court in Duren v,

Missourd, 99 8.Ct, 1623, 50 L.Bd.2d 317 (1979),

which reiterated the three-part test set forth

in Taylor v. Louisiana, 419 U.6, 522 (1975),

under whieh a defendant must show the following

to establish a prima facie case of violation of

the fair crosa-section requirements: 1) that

the group alleged to be excluded ia a "distine=

tive" group in the community; 2) that the group's

representation in the source from whieh juries

are selected is not fair and reasonable in

relation to the number of sueh persons in the

14,

community; and 3) that this underrepresentation

results from systematic exclusion of the group

in the jury selection process.

Those citizens in our society who do not

register to vote, among whom are the appellant

and virtually everyone sympathetic to his protest,

are: 1) "distinetive" because of their enormous

numbers and their disaffection with the present

political process, 2) not represented on any

juries in the Distriet of Minnesota, which cane

not be fair and reasonable, and 3) systematically

excluded by the jury selection process, 1.6,

none but registered voters are eligible,

No showing of “invidious diserimination"

in voter registration is required as is con-

clusively established by Taylor, supra, and

Duren, supra,

Vor all of the foregoing reasons and

especially because the opinion of the Court of

Appeals is replete with misstatements of the

record and erveneous interpretations of the

M4,

decisions of this Court, which will cause con-

fusion and injustice in great measure, the

Petitioner prays that this Court grant a Writ

of Certiorari to review and rectify the decision

of the Eighth Circuit.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. 31.3402(f) (2)-1(e)

2. 4th Amendment

3. 5th Amendment

4. 6th Amendment

5. 26 U.S.C. §7205

6. 18 U.S.C. §1001

§31.3402(f) (2)-l(e).

"(e) Invalid withholding exemption

certificates. Any alteration of or

unauthorized addition to a with-

holding exemption certificate shall

cause such certificate to be in-

valid; see paragraph (b) of §31.

3402 (f)(5)-1 for the definitions of

alteration and unauthorized addition.

Any withholding exemption certifi-

cate which the employee clearly

indicates to be false by an oral

15.

statement or by a written statement

(other than one made on the with-

holding exemption certificate itself)

made by him to the employer on or

before the date on which the emp-

loyee furnishes such certificate

is also invalid. For purposes of

the preceding sentence, the term

‘employer' includes any individual

authorized by the employer either

to receive withholding exemption

certificates, to make withholding

computations, or to make payroll

distributions... If an employer

receives an invalid withholding

exemption certificate he shall

consider it a nullity for purposes

of computing withholding; he shall

inform the employee who submitted

the certificate that it is invalid,

and he shall request another with-

holding exemption certificate from

the employee. If the employee who

submitted the invalid certificate

fails to comply with the employer's

request, the employer shall withhold

from the employee as from a single

person claiming no exemptions (see

§31.3402(f£) (2)-l(a); if, however,

a prior certificate is in effect

with respect to the employee, the

employer shall continue to with-

hold in accordance with the prior

certificate. For instructions to

employers who receive valid with-

‘holding exemption certificates

which they have reason to believe

may be incorrect, see §31.3401(e)-

l(b) and §31.3402(n)-1. This

paragraph applies only with respect

to withholding exemption certifi-

16.

cates received by an employer after

July 26, 1976.

§31.3402(£)(5)-1. Form and contents

of withholding exemption certificate.

-(a) Forms W-4 and W-4E are the forms

prescribed for the withholding exemp-

tion certificate required to be filed

under section 3402(f) (2). Form W-4

is the form to be used unless the

employee desires, in accordance with

the provisions of §31.3402(f) (2)-1,

to use a withholding exemption certi-

ficate which contains statements

described in §31.3402(n)-1, in which

case Form W-4E is the form to be

used. A withholding exemption

certificate shall be prepared in

accordance with the instructions

and regulations applicable thereto,

and shall set forth fully and

Clearly the data therein called

for. Blank copies of Forms W-4 and

W-4E will be supplied employers

. upon request to the district

director. In lieu of the prescribed

form, employers may prepare and use

a form the provisions of which are

identical with those of the pre-

scribed form.

(b) A Form W-4 or W-4E does not

meet the requirements of section

3402(£) (5) or this section and is

invalid if it contains an alter-

ation or unauthorized addition.

For purposes of §31.3402(f) (2)-1(e)

and this paragraph ---

17.

(1) An alteration of a with-

holding exemption certificate is

any deletion of the language of the

jurat or other similar provision

of such certificate by which the

employee certifies or affirms the

correctness of the completed certi-

ficate, or any material defacing

of such certificate;

(2) An unauthorized addition

to a withholding exemption certi-

ficate is any writing on such

certificate other than the entries

requested (e.g. name, address, and

number of exemptions claimed).”

Amendment 4, United States Constitution:

"Unreasonable searches and seizures.

The right of the people to be se-

cure in their persons, houses,

papers, and effects, against un-

reasonable searches and seizures,

shall not be violated, and no .

Warrants shall issue, but upon

probable cause, supported by Oath

or affirmation, and particularly

describing the place to be

searched, and the persons or things

to be seized."

Amendment 5, United States Constitution:

"Criminal actions--Provisions

concerning--Due process of law

and just compensation clauses,

No person shall be held to answer

for a capital, or otherwise in-

famous crime, unless on a present-

ment or indictment of a Grand Jury,

except in cases arising in the land

or naval forces, or in the Militia,

18.

when in actual service in time of War

or public danger; nor shall any per-

son be subject for the same offense

to be twice put in jeopardy of life

or limb; nor shall be compelled in

any criminal case to be a witness

against himself, nor be deprived of

life, liberty, or property, without

due process of law; nor shall pri--

vate property be taken for public

use, without just compensation."

Amendment 6, United States Constitution:

"Rights of the accused. In all

criminal prosecutions, the accused

shall enjoy the right to a speedy

and public trial, by an impartial

jury of the State and district

wherein the crime shall have been

committed, which district shall

have been previously ascertained

by law, and to be informed of the

nature and cause of the accusation;

to be confronted with the witnesses

against him; to have compulsory

process for obtaining witnesses

in his favor, and to have the

Assistance of Counsel for his de-

fense."

26 U.S.C. §7205. "Fraudulent With-

holding Exemption Certificate or

Failure to Supply Information. ,

Any individual required to supply -

information to his employer under

section 3402(f) who willfully

supplies false or fraudulent

information, or who willfully

fails to supply information

thereunder which would require

an increase in the tax to be

19.

ee

withheld under section 3402, shall,

in lieu of any penalty otherwise

provided, upon conviction thereof,

be fined not more than $500, or

imprisoned not more than 1 year,

or both."

18 U.S.C. §1001. "Statements or

entries generally. Whoever, in any

matter within the jurisdiction of

any department or agency of the

United States knowingly and will-

fully falsifies, conceals or

covers up by any trick, scheme,

or device a material fact, or

makes or uses any false writing

or document knowing the same to

contain any false, fictitious

or fraudulent statement or entry,

shall be fined not more than $10,000

or imprisoned not more than five

years, or both."

STATEMENT OF THE CASE

By Indictment filed February 10, 1978,

Larry L. Warinner was charged with one count

of willfully supplying false and fraudulent

federal withholding tax information in violation

of 26. U.S.C. §7205.

Defendant had provided his employer with

a W-4E certificate on April 1,1976, on which

he inscribed "Exhibits I through IV and ‘A'

20.

through 'C' which is (sic) attached hereto is

made a part hereof." Attached to that W-4E were

voluminous documents explicating Defendant's

political, philosophical, religious, and legal

bases for filing the W-4E. During the latter

part of August or early September, 1976, the

Defendant received a note from his employer's

payroll manager, Ms. Kitty Essman, which stated

that the W-4E on file was invalid according to a

letter from the IRS and that, unless the Defen-

dant forwarded a completed new form W-4 or W-4E

form “without any alteration or remarks" (emphasis

in originel), withholding on the basis of a single

person with no exemptions would commence

September 21, 1976. Accordingly, on September

15, 1976, the Defendant aeons a W-4E to his

employer without any alteration or remarks. This

act constitutes the basis for the one count

indictment in this case.

21.

ee ere eee

ee Pens ere ae gee ——

During April, 1976, Special Agent William

Tschida of the IRS had begun investigating

Warinner and notified Warinner that the W-4E was

not the proper document for him to file. Although

advised by Warinner of the latter's refusal to

be interviewed, Tschida went to Warinner's place

of employment and demanded to speak to him.

Warinner politely declined. Other IRS agents

instructed Warinner's employer, North Central

Airlines, to disregard any W-4E's filed by

Warinner and referred North Central to §31.3402

(£) (2) -1(e) of the IRS regulations which provides

for notice to the employee of the type encom-

passed in the letter from Ms. Essman.

Mr. Warinner's defense was that he believed

himself to be exempt from withholding for all

the reasons set forth in the documents attached

to the W-4E submitted in April of 1976. The

Government prosecuted on the theory that the

grounds were a subterfuge to illegally avoid

taxes.

22.

A jury trial was held in the United States

District Court for the District of Minnesota,

Fourth Division, before the Honorable Harry H.

MacLaughlin. Judgment of conviction was entered

on the verdict of guilty on April 18, 1979.

Defendant was sentenced to one year of imprison-

ment.

In affirming the District Court's denial

of Defendant's motion to suppress the W-4E at

issue on the basis that it was 1) elicited by

the Government's use of a third party, 2) after

Defendant was the focus of a criminal investi-

gation, 3) under the threat of confiscating

Warinner's wages, and 4) with no Miranda-type

warning (in violation of the Privacy Act), the

Eighth Circuit held:

"Appellant's position, however, is

untenable. In United States v.

Echols, 477 F.2d 37 (CA 8, 1973),

this court recognized the general

rule that a search will be consi-

dered invulnerable to fourth

amendment attack so long as the

search is conducted for private

purposes and without instigation

23.

———— gee

ee ne

or participation of government agents."

In so doing the Eighth Circuit disregarded,

without discussion, its own holding in United

States v. Haes, 551 F.2d 767, 770 (CA 8, 1977):

",...where a search is physically

conducted by a private individual

but only at the government's

initiation and under their guidance

it is not a private search."

The Eighth Circuit affirmed the District

Court's denial of Defendant's motion to dismiss

based on impermissibly discriminatory prose-

cution by conceding that others similarly

situated were not prosecuted while refusing to

comment on the fact that Defendant was denied

the opportunity to show that his selection for

prosecution was based on his exercise of First

Amendment rights, despite the fact that it was

conceded that Warinner was prosecuted because

he was a "vocal tax protestor".

Finally, the Court of Appeals decreed that

nonregistered voters -- who presently constitute

more than 50% of the adult population of this

24.

nation -- do not constitute a cognigable group,

ipse dixit.

The opinion was filed Octoher 11, 1979, and

the petition\for rehearing was denied Nevenmber 14,

1979. A motion for Stay of Mandate pending filing

and disposition of the Petition for Writ of

Certiorari was granted by the Court of Appeals,

PORTIONS OF THE THIAl,

Pursuant to a subpoena Inay Mories, Chief

of the Criminal Investigation Division of the Ths

for the District of Minnesota, testified hefore

Magistrate J. Earl Cudd on Febrijavy 19, 1979,

At pages 51-52 of the transcript of that hearing

he was asked by defense counsel t# daseribe

"legal tax protest activities", t# whieh he

responded, "Printing and distriluhing Literature,

speaking in public regarding the tan lawe, things

of that nature, writing letters (0 hewspapers,

Q. Would such activities subject the

participant to any kind of surveillance or any

25.

kind of investigation by the Internal Hevenue

Service or some other governmental ageney?

A, ff don't believe se,"

Then, ab page 454%

"O, te it your statement that there was ne

intelligence gathering, no investigation of people

engaged in legal protest activities prier te

January 10, 10707

A, We, that's nok my statement, "

And, ab page 61)

"QO, Ave you aware of any preseeutions that

have been widertaken against individuals eharged

with 67205 Vielations whe are nok tax probestora?

A, We, iv,"

Then, ab page 744

"O, te it your understanding that there

ie no surveillance or information gathering or

investigation divreeted at legal tax protestors

uiless there has been what you determine to be

illegal tax protext first?

A, in thie distriet, that's true, yes,

26,

0. De you have 4 department within your

department or within the Internal Hevenue service

ab large whieh eolleets letters te the editers or

eolleets any statements made by baw protestors

and keeps a log of these things?

A, f don't know of any sueh department, "

Then, ab page 7A:

Q, De any other ageneies of the gevernment

eewshate, legal, federale=-qather information for

you upen whieh you rely, and by 'you' f mean the

intelligence Division of the Internal Revenue

Service in this distriet?

A, We, they doen't gather information for

us, Hewever, we go te them for information on

eedasion,

QO» ver for whieh departments or divisions

within the Internal Revenue service?

A, I ean apeak for my division, and we do

use them as sources of information,

Q, Whom do you use?

A, State and loeal law enforeement agencies,

a7,

QO, De you use the PAL?

A, Yee,

QO, De you use the PAL and these other

ageneies a8 it relates to baw prebester eases?

A, We may have,"

Then, ab page Has

"O, F just wanted te Find out whieh

ageneies of leeal, state or federal gevernment

were invelved in the surveillanee and ether

intelligence aetivities that - asked you about

eaviier »,», Be yeu send agents, or do any of

these ageneies send agents to any meetings of

bax probestors?

A, 1 believe se,

Q, What are the eriteria for making that

determination?

A, Well, 1 don't know what the evriteria

are in other agencies, bub in Oure we may send

an agent to attend @ meeting if there ave

individuale whe have indicated by material they

have filed with us that they ave illegal tax

au,

protestors -- involved."

And, finally, at page 83:

"Q. Are you furnished with the names of

those who attend meetings?

A. No, sir, normally just the names of the

individuals who we have an interest in in terms

of illegal tax protest activities.

Q. Since you already know the names of

these people before the agents go to the meetings,

what are the agents doing at the meetings?

Mr. Morrow: Objection, irrelevant.

The Court: Sustained.

Q. May I inquire what intelligence gathering

duties they have at these meetings?

A. Our interest would be in identifying

any other illegal tax protestors."

Defense counsel was permitted to question

three agents of the IRS and the closest thing to

an explanation for how Mr, Warinner came to the

attention of the IRS is the following:

Mr. Douglas Hantke, Chief of the Audit

29.

Division testified as follows:

"Q. Can you tell us how Mr. Holland (the

agent who officially commenced the investigation)

came to investigate North Central Airlines em-

ployees?

A. I don't know how the original audit

commenced."

Petitioner submits that the tortuous testi-

mony of the Chief of the Criminal Investigation

Division - culminating in the admission that his

agency sends agents to infiltrate legal tax

protest meetings to identify participants engaged

in activities protected by the First Amendment --

establishes that citizens are targeted for criminal

investigation and prosecution in a manner viola-

tive of First Amendment rights. Documents

attached to the Defendant's motion to dismiss

based on unconstitutional discrimination esta-

blish that this practice is not limited to

Minnesota. An opinion of the Ninth Circuit

United States Court of Appeals is included in

30.

the attachments to the motion, which opinion

reverses convictions under 26 U.S.C. §7205 be-

cause prosecutions were brought by the same

method as described by Mr. Morics in this case.

An evidentiary hearing would establish

that Warinner was selected for prosecution by a

process of infiltrating public meetings and

investigating the participants, which led to

Warinner's indictment.

ARGUMENT FOR GRANTING THE

WRIT AND QUESTIONS ON REVIEW

The Court of Appeals formulates the first

prong of Defendant's attack on his conviction

thusly:

"On appeal Warinner contends first that

the subject Form W-4E involved an unlawful search

in violation of his fourth amendment rights, com-

pelled self-incrimination in violation of his

fifth amendment rights, and was obtained in vio-

lation of his sixth amendment rights.

31.

A =— -

",..e-Recognizing that the fourth amendment

only extends to searches conducted by the govern-

ment, Burdeau v. McDowell, 256 U.S. 465 (1921);

United States v. Haes, 551 F.2d 767 (CA 8, 1977),

Warinner argues that Kitty Essman was an agent of

the IRS." (at p. 4)

Having properly presented the issue, the

Court of Appeals cites a principle and a case in-

apposite to this one and launches into an argu-

ment that is pure ignorantio glenchi:

"Appellant's position, however, is untenable.

In United States v. Echols, 477 F.2d 37 (CA 8,

1973), this court recognized the general rule

that a search will be considered invulnerable to

fourth amendment attack so long as the search is

conducted for private purposes and without insti-

gation or participation of government agents.

"First, Ms. Essman, the North Central pay-

roll manager, requested that Warinner submit a

new withholding form at least in part for the

company's own purposes. Because IRS regulations

32.

indicated that an altered employee withholding

exemption certificate may result in extra tax

liability, Ms. Essman asked Warinner to file a

new form for the purpose of helping the employee

to comply with federal income tax regulations

and avoid excessive tax payments. Thus, the

Essman note had clearly private purposes.

"Kitty Essman's dealings with Warinner were _

also conducted without direct instigation by or

participation of government agents. Although

the IRS informed Ms. Essman of the potential

invalidity of Larry Warinner's tax withholding

form the IRS did not ask her to request that

Warinner file a new form W-4E. The IRS merely

noted that the Internal Revenue Code does not

require an employer to ascertain the correctness

of the Form W-4E and indicated an employer's

legal responsibility was to inform the IRS of a

potentially invalid certificate.

"The fact that in part the IRS regulations

consequentially may have motivated Ms. Essman

3230

to request a new withholding form is not in itsel

sufficient to create a government act within the

ambit of the fourth amendment." (at pp.5-6)

(emphasis added) .

Nothing in this case even remotely suggests

that Ms. Essman's note had any private purpose.

On this point, Ms. Essman's testimony at trial

is as follows:

"Q. Can you identify Government's Exhibit

No. 10?

A. It's a W-4E filed by Larry Warinner on

April 1 of 1976 pertaining to the year 1976."

(Vol. 1, p. 97) )

Continuing at page 101 of Volume 1 of the

transcript:

"Q. Kitty, when you received this form what

did you do with it?

A. I accepted this as was and honored the

exemption form withholding per Mr. Warinner's

request.

Q. When did it come to your attention that

34.

a W-4E form with attachments or alterations was

an invalid form?

A. During several investigations by the

Internal Revenue. Special Agents were at our

office and indicated that these forms were in-

valid according to revenue code, which I don't ‘

know the number of, and therefore that I should

disregard them. We did not obey at that time.

We wanted some written authorization before we

disregarded any W-4 or W-4E forms from our

employees.

Q. Did you get that written authorization?

A. Yes. In August of 1976 we received a

letter from the Internal Revenue Service with

specific names of employees whose W-4E exemption

forms was invalid.

Q. Showing you what's been marked for

identification as Government's Exhibit No. ll,

can you identify that?

A. This is a letter sent to me dated

August 24 of 1976 from the Internal Revenue

35.

Service pertaining to the W-4E form on file for

Larry Warinner." (Trans. Vol. I, p. 102)

To complete the refutation of the Court of

Appeals contentions that 1) "the Essman note had

clearly private purposes", 2) "Kitty Essman's

dealings with Warinner were also conducted without

direct instigation by or participation of govern-

ment", and 3) "in part the-IRS regulations conse-

quentially may have motivated Ms. Essman to request

a new withholding form is not in itself suffi-

cient to create a government act within the ambit

of the fourth amendment. [Meister v. Commissioner,

504 F.2d 505, 510 (CA 3, 1974)]" this language

from §31.3402(f) (2)-l(e) is sufficient:

"If an employer receives an invalid with-

holding exemption certificate he shall consider

it a nullity for purposes of computing with-

holding; he shall inform the employee who sub-

mitted the certificate that it is invalid, and

shall request another withholding exemption

certificate from the employee." (emphasis added)

36.

Ms. Essman's note was compelled, including 65 L.Ed. 1048, and United States ve Echols,

the request for another certificate, by the un- 477 F.2d 37 (1973), should be considered in the

equivocal language of the regulation and there light of that Court's holding in Echols, supra:

is not one scintilla of evidence suggesting "Our recent case of United States v.

: 3 : I Burton [475 F.2d 469 (CA 8, 1973)]

that her actions had any private purpose or were in which this court confirmed the

private character of an airline

: case. In that case, defendant pur-

involved Meister's claim of a fourth amendment chased an airline ticket and, at the

same time, checked two bags for

violation on the basis that the books and re- flight. The ticket agent, sus-

: picious because defendant fit the

cords of a corporation wholly owned by Meister security profile, and the weight

ag , distribution of one of his bags

were turned over to the IRS by that corporation's seemed unusual, searched the bag

; and found a gun. A federal marshal

officer manager, who was the custodian of those was notified and defendant arrested.

records. The comparison ignores the fact that In Burton, we recognized the general

a a rule that searches of packages or

Warinner was already the focus of a criminal luggage by airline employees are

: BL invulnerable to fourth amendment

investigation when the W-4E at issue was elicited attack ‘so long as the search is

: : : conducted by the carrier for its

from him pursuant to the command of the quoted own purposes and without the

} ; : : : a! instigation or participation of

regulation, whereas the investigation of Meister y government agents. [citations

: omitted]. In the present. case the

did not commence until the office manager blew search of appellant's travel bag

: ; was conducted solely by a TWA

the whistle on Meister and the records were turned employee for the purpose of ob-

taining identification of the owner

over to the IRS. of the luggage. The employee was

; acting pursuant to a TWA regula-

The Court of Appeals citations of Burdeau tion authorizing the precise

: conduct in which he was engaged.

v. McDowell, 256 U.S. 465, 41 S.Ct. 574,

a 38.

There is not a scintilla of evi-

dence that any government agent re- the nature of the seizure and whe-

quested that the search be made, was ther it had passed constitutional

present when the travel bag was muster. In this case, though the

opened, or had any knowledge con- police obtained a warrant prior to

cerning the activity until after seizing the films, our inquiry

the gun had been discovered." into the nature of the search is

not obviated.

In United States v. Haes, 551 F.2d 767 (1977), |

; The distinction. between a private

the Court of Appeals for the Eighth Circuit re- search and a governmental. search

3 \ has Deen considered in several

versed appellant's conviction because the corpus | cases. It has been held that

where a search is physically con-

delicti - obscene material - was obtained through ducted by a private individual

but only at the government's

a search and seizure initiated by a common ' initiation and under their guidance

it is not a private search. United

carrier, but consummated by the FBI. States v. Newton, 510 F.2d 1149,

1153 (7th Cir. 1975); Corngold v.

"The search and seizure of property United States, 367 F.2d 1, 5 (9th

by a private individual without any Cir. 1966).

governmental involvement is not

subject to the dictates of the exclu- . ee

sionary rule. Burdeau v. McDowell,

456 U.S. 465, 467, 41 S.Ct. 574, Finding that the Denver search

66 L.Ed. 1048 (1921). The courts was illegal, the evidence obtained

have engaged in a two prong analysis in that search must be suppressed.

of 'allegedly' private searched, Mapp v. ong 367 U.S. 643, 81 S.Ct.

however, separately analyzing the 1684, 6 L.Ed.2d 1081 (1961). Since

search aspect apart from the actual ) the subsequent search of Haes'

seizure in order to determine 4 office in Des Moines is a direct

whether there was sufficient i result of the information obtained

governmental participation in in the Denver search, the evi-

either aspect to require fourth. ‘ dence gathered in the Des Moines

amendment protection, See United search must also.be suppressed.

States. v, Sherwin, 539 F,2d 1, 6-7 Wong Sun v. United States, 371 U.S.

(9th Cir. 1976), United States 471, 83 S. Ct, 407, 9 L.Ed.2d 441

v. Kelly, supra, 529 F.2d. at. 1371, (1962).

Thus, as in Sherwin and Kelly, when

the search was held to be a private

search, the inquiry then focused on

SF. - 40.

It is not difficult to distinguish Echols

from Haes, nor can one seriously contend that

Kitty Essman's solicitation of the incriminating

W-4E here at issue was not initiated by the

government. In its opinion at page 6, the Court

of Appeals seems. to concede as much in the

following language:

"But even assuming Kitty Essman was

acting on behalf of the IRS, her

letter together with Warinner's

response did not amount to a

seizure. Appellant cites Boyd

v. United States, 116 U.S. 616,

(1886), to support his theory that

the Essman note violated the fourth

amendment. In Boyd, the Supreme

Court declared unconstitutional

a subpoena for an invoice which

showed that importers were frau-

dulently claiming excess duty

exemptions. Boyd,however, involved

compulsory production of evidence

under a subpoena. Here, Warinner's

filing of the W-4E was not com-

pulsory, but rather entirely

voluntary. Appellant was not

obliged to file a Form W-4E to

carry out his tax protest, He

could have filed a Form W-4 and

paid his income tax and then filed

for a refund at the end of the year.

True, he would have been denied the

use of his money for a time, but

that economic compulsion does not

4l.

ee ee ‘

change the essentially voluntary

nature of his act."

The foregoing proposition, i.e. “economic

compulsion does not change the essentially

voluntary nature of his act", constitutes an

unfortunate failure to apprehend the Boyd case,

which stands for precisely the opposite pro-

9

position, i.e.:

"It is our opinion, therefore, that

a compulsory production of a man's

private papers to establish a

criminal charge against him or to

forfeit his property is within the

scope of the Fourth Amendment to

the Constitution, in all cases in

which a search and seizure would

be ..." Boyd, supra.

The assertion by the appellate court that

Warinner "could have filed a W-4 ... and then

filed for a refund «++ (though) he would have

been denied the use of his money for a time

---" appears to be that court's attempt at a

jest, since the remainder of the opinion reveals

that the court is well aware of the probable

outcome of such a refund suit. But in thus

mocking the assebiaat*s protest, ‘the Eighth

42.

Circuit reveals the unstated assumption which

leads to all its conclusions, i.e. Warinner had

no choice but to £i11 out a W-4 according to the

IRS regulations in order to protest its legality,

notwithstanding the fact that he could not do so

in good conscience.

In the recent case of Abood v. Detroit

Board of Education, 431 U.S. 209, 52 L.Ed.2d 261,

97 S.Ct. 1782 (1977) the Supreme Court addressed

the question of proper limits on individual free-

dom of thought and expression thusly:

"The fact that the appellants are

compelled to make, rather than pro-

hibited from making, contributions

for political purposes works no less

an infringement of their constitut-

ional rights. This view has long

been held. James Madison, the First

Amendment's author, wrote: 'Who does

not see ... [t]hat the same autho-

rity whch can force a citizen to

contribute threepence only of his

property for the support of any one

establishment, may force him to

conform to any other. establishment

in all cases whatsoever?" The

Writings of James Madison 186 (Hunt.

ed. 1901). Thomas Jefferson agreed

that ‘to compel a man to furnish

contributions of money for the pro-

43.

EN ea etre than ti

Se a ee

? A ON SARE Ce ea)

pagation of opinions which he disbelie-

ves, is sinful and tyrannical.’ I.

Brant, James Madison: The Nationalist

354 (1948). Por at the heart of the

First Amendment is the notion that

an individual should be free to be-

lieve as he will, and that in a free

society one's beliefs should be

shaped by his mind and his conscience

rather. than.coerced by the State.

Elrod v. Burns, 427 U.S. .347, 49 L.Ed.

2d 547, 97 S.Ct. 2763; Stanley v.

Georgia, 394 U.S. 557,22 L.Ed.2d 542,

89 S. Ct. 1243; Cantwell v.

Connecticut, 310 U.S. 296, 84 L.Ed.

1213, 60 S.Ct. 900, and the freedom

of belief is no incidental or secon-

dary aspect of the First Amendment's

protections:

'If there is any fixed star in our

constitutional constellation, it is

that no official, high or petty,

can prescribe what shall be ortho-

dox in politics, nationalism,

religion, or other matters of opinion

or force citizens to confess by

word or act their faith therein.'

West Virginia Bd. of Ed. v.

Barnette, 319 U.S. 624, 87 L.Ed.

1628, 63 S.Ct. 1178.”

The instant case presents us with a heretic

who denies the constitutionality of

the voluntary self-assessment system

and the Internal Revenue Service

that enforces the orthodox volun-

teerism. His dissent is not a

defense to civil liability, but the

First Amendment must protect him

44.

from an administrative criminaliza-

tion of his heretical refusal. to pay

a debt he denies.

The Court of Appeals glosses over the in-

fringement of Warinner's fifth and sixth amend-

ment rights with this general statement:

"Numerous cases in this circuit have

held that it is not a violation of

the fifth amendment to require the

filing of tax forms. (citations

omitted)

--- A fortiori where Warinner was

not required to file, but rather

voluntarily filed the form W-4E,

the appellant is not shielded by

the fifth amendment. Andresen v.

Maryland, 427 U.S. 463 (1976).

Appellant's sixth amendment argument

is equally untenable. Appellant

contends that Kitty Essman's fail-

ure to give him a Miranda warning

denied him the right to counsel.

But, as we noted previously, Kitty

Essman‘'s actions were clearly

private, and the Miranda require-

ment does not, of course, apply to

private parties. Moreover, the

Supreme Court has refused to extend

the Miranda requirement to. pre-

custodial interrogations, Beckwith

v. United States, 425 U.S. 341

(1976), and this court has speci-

fically rejected application of

45.

Sts whitch peda ee sibel:

liye ht a a OA Neel ie a Laie ho IN

ie

Miranda ‘to precustodial. interrogations,

involving investigations of possible

violations of the Internal Revenue

Code. United States v. Hiken, 458

F.2d 24 (CA 8, 1972); ar S. v. MacLeod,

436 F.2d 947 (CA 8, 1971); U.S. ve

Brevik, 422 F.2d 449 (CA 8, ~1970).

Because the Essman note was private

action as well as precustodial, the

Miranda rationale simply does not

apply.

Noting that any conclusions based upon the

premise that "the Essman note was private action"

must be regarded with suspicion, consideration

of the cases cited by the Court of Appeals is

in order. For the proposition that Warinner's

filing of the W-4E was voluntary, the Court of

Appeals cites Andresen, supra. In discussing

Andresen's fifth amendment argument, the Court

reasoned:

"In this case, petitioner, at the

time he recorded his communication,

at the time of the search, and at

the time the records were admitted

at trial, was not subjected to

the cruel trilemma of. self-

accusation, perjury or contempt’

-.- [Murphy v. Waterfront Comm'n,

378 U.S. 52, 12 L.Ed.2d 678, 84

S.Ct. 1594 (1964)1. Indeed, he

was never required to say or to do

46.

anything under penalty of sanction.

--- In this case, the statements

seized were voluntarily committed

to paper before the police arrived

to search for: them ...". 49 L,.Ed.2d

627, at 640,

But in Larry Warinner's case, Warinner's

belief‘in his tax exempt status could only be

honestly expressed in one way: by stating that

belief without equivocation and attaching to the

W-4E he "voluntarily" filed in April of 1976, the

legal and philosophical basis for his belief.

The Court of Appeals overlooked the fact that

the statute upon which Warinner's conviction is

based requires the filing of a W-4 or W-4E, nor

did its opinion discuss the fact that Warinner's

"incriminating" W-4E was not "voluntarily com-

mitted to paper before the police arrived to

search for [it]...", but, rather, the act for

which Warinner stands convicted was committed

while he was subjected to the cruel trilemma

of 1) filing neither W-4 nor W-4E, thus - by

failing to file - violating 26 U.S.C §7205,

47.

WA a rcartin cit ta

Taek ba ah eat

ITN Sabie RTs SAE tA! Flies PO ahd al We Dan Et Age ae ats!

_

2) filing a W-4 which he believed to be false

because he denies income tax liability, then -

as the Court of hamelain suggests - filing a suit

for refund of the taxes he had conceded he owed on

the W-4 (under penalty of perjury), alleging that

he is entitled to a refund of the taxes he ad-

mitted owing under oath, or 3) acting and speak-

ing consistent with his belief, which is what he

did. Furthermore, the Court of Appeals omits any

mention of the fact that Warinner's filing the

W-4E was "required ... under penalty of sanctions",

which sanction has been imposed, i.e. withholding

on the basis of a single person with one exemption

has been done for two years, though Warinner is

married and supporting two children.

The Court of Appeals references to Hiken,

MacLeod and Brevik, supra, are inappropriate

because none involved the threat of forfeiture,

none of the statements. sought to be suppressed

were required by statute, none of those defen-

dants was the focus of criminal investigation

48.

when their disclosures were made, and all were

statements regarding past misconduct - none

constituted the crime itself as did Warinner's

filing the clean copy W-4E in response to a

proper request for same initiated by the govern-

ment.

Certain of the Defendant's constitutional

rights were violated when, after he had become

the focus of a criminal investigation, 1) Kitty

Essman instructed the Defendant that "due to a

letter received from the Internal Revenue Service

--» please forward the completed new forms W-4E

or the W-4 form without any alteration or

remarks as soon as possible"; 2) coupled the

solicitation with the statement that "failure to

submit the new form will result in Federal tax

deduction based on single with no exemption

starting September 21, 1976"; and 3) the Indict-

ment herein was procured based on the Defendant's

filing a W-4E "without any alteration or remarks"

in response to the Essman letter.

49.

We begin the analysis with Miranda v. Arizona,

384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966),

which focused on securing the Fifth Amendment

privilege against compelled self-incrimination,

and Massiah v. United States, 377 U.S. 201, 84

S.Ct. 1199, 12 L.Ed.2d 246 (1964), which dealt

with the essence and application of the Sixth

Amendment right to the effective assistance of

counsel, 384 U.S. at 469-77, 86 S.Ct. at 1625-293

the "prime purpose" of the Court's Miranda holding

was "to guarantee full effectuation of the privi-

lege against self-incrimination", Johnson v.

New Jersey, 384 U.S. 719, 729, 86 S.Ct. 1772,

1779, 16 L.Ed.2d 882 (1966), and "not to vindicate

the constitutional right to counsel as such".

Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct.

1877, 1882, 32 L.Ed.2d 411 (1972).

Since we contend that the W-4E here in

question was obtained by violating Defendant's

Fourth Amendment right to be free from an un-~

reasonable search or seizure as well as his

50.

Fifth Amendment rights to due process of law and 1232, 51 L.Ed.2d 424 (1977), the Supreme Court

freedom from compelled self-incrimination and held:

Sixth Amendment right to counsel, it is pertinent "That the incriminating statements

fy | were elicited surreptitiously in

that "nothing decided or said in Miranda or | the Massiah cash, and otherwise here,

is constitutionally irrelevant.

McLeod v. Ohio, 381 U.S. 356, 14.L.Ed.

Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, v. Ohio

2d 682, 85 S.Ct, 1556; U.S. v. Crisp,

12 L.Ed..2d 977 (1964), links the right to counsel 435 F.2d 354, 358 (CA.7); U.S. ex rel

| O'Connor v. New.Jersey, .405 F.2d 632,

only to the protection of Fifth Amendment rights". i 636 (CA 3); Hancock v. White, 378

F.2d 479 (CA 1). -Rather, the

United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. | clear rule of Massiah is that once

etaneneesy Tabet | adversary proceedings have commenced

1926, 1932, 18 L.Ed.2d 1149 (1967). To the contrary against an individual, he has a right

to. legal representation when the

the right to counsel is a guarantee, "as broad as government interrogates him." 430

| U.S. at 400, 97 S.Ct. at 1240,

the mischief against which it is designed to Sl L.Ed.2d at 437-38.

guard", that the accused "need not stand alone ] "The moment at which adversary proceedings have

4 J . 7 s "

against the state at any stage of the prosecution, commenced against an individual", as regards

formal or informal, in court or out, where | criminal tax investigations, is a question

counsel's absence might derogate from the recently answered in the case of Beckwith v.

accused's right to a fair trial". Id. U.S., 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d l.

In the instant case, the IRS investigation Beckwith was charged with attempted federal in-

had long since become a criminal investigation come tax evasion and prior to trial in U.S.

when the September, 1976, W-4E was elicited by District Court for the District of Columbia he

Kitty Essman's note. In the very recent case moved to suppress statements he had made to

0 ile

of Brewer v. Williams, 430 U.S. 387, 97 S.Ct. special agents of the Internal Revenue Service

51. | 52.

at a noncustodial interview that had been con- The comparison between Defendant herein and

ducted in a private home. Just as the Defendant Defendant Beckwith is particularly compelling:

> Ss s © u ' M 7 . t

Warinner ar@s in this case, "(Beckwith) contends pane DRENeaee, Ten Sree SeerCl as Lees foe

that the ‘entire starting point' for the criminal the criminal prosecution brought against him

prosecution brought against him was secured from was secured from his own statements ...°. But

here, Defendant Warinner was given no warning

his owr statements and disclosures during the

interview with the Internal Revenue agents from eee Cee oe er heee SOM SESE Soe

the Intelligence Division. He correctly points eet ae tee eee eeey Se YASTARS CAMS S¥ ee”

ces Massiah-type subterfuge on the part of the

out that cases are assigned to the Intelligence

4 . . ° *

Division only when there is some indication of IRS, which instructed Ms. Essman to solicit the

criminal fraud and that, especially since tax W-4E filed by Warinner which comprises the

putative corpus delicti herein. In Massiah,

offenses rarely result in pretrial custody, the

taxpayer is clearly the 'focus' of a criminal supra, the government elicited incriminating

investigation when a matter is assigned to the statements from the Defendant, after he had be-

Intelligence Division." (emphasis added). come the focus of adversary proceedings, by

Beckwith, 48 L.Ed.2d 1, at p. 6. The agent from planting a radio transmitter in the automobile

amg : Sat 8 Pea j

the Intelligence Division testified that Warinner's © of Massiah's co-defendant, who had decided to

case had been assigned to the Intelligence Divi- : cooperate with the government and testify

1 * F 4

sion prior to the instructions to Ms. Essman and against Massiah. In this case, the government

the ensuing letter. (Record, Vol. II, pp. 155-157). : has used Pefendant's employer to induce Defen-

dant to file the W-4E which is the subject of

53. 54.

the Indictment. actions of third parties to secure incriminating

It does not require a close reading of the evidence by "entreaty" and "deception". Knoll

Essman letter to ascertain that it falls so far : Associates, Inc. v. FTC, 397 F.2d 530 (1968) con-

short of the caveat deemed adequate in Beckwith | cerned a proceeding in which documents stolen by

that no discussion of waiver need be undertaken an employee named Herbert Prosser from his cor-

herein. The specific variety of constitutional porate employer were introduced against the

violation which is the subject of this motion employer in an action to enforce Clayton Act

to suppress, i.e., use by IRS agents of the | provisions before the Federal Trade Commission.

third party - Essman - to elicit the incrimi- "The action of the Commission in utili-

zing the fruits of the misconduct of

Wi lea a,

nating W-4E from Defendant by implying IRS Prosser violated rights of petitioner

(Knoll Associates, Inc.) protected by the

sanction of the procedure on the one hand, Fourth Amendment to the federal consti-

: tution. The undisputed evidence shows

while threatening confiscation of Defendant's that Prosser stole the documents for

Sa : the purpose of assisting the Commission

property on the other, is subsumed in the | counsel in the prosecution of the pro-

: , ceeding then pending, and the record

statement of the Supreme Court in Culombe v. | shows that the Commission by its use of

. : the documents knowingly gave its appro-

Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L. val to Prosser's unlawful act ... That

| the evidence was taken and actually

Ed.2d 1037 (1961): used for the purpose of aiding the

= : ' 3 Mie : Commission to enforce the Clayton Act

"Certainly the police may not circum- does not justify the action, Gambino

vent a constitutional requirement by v. U.S., 275 0.8. 310, 317, 48 -8.Ct.

using the ‘technique’ of posinga - . 137, 72 %.Ed.293 (1927)...."

question.in declaratory fashion," U,S.

v. Jordan, 557 F.2d 1081, at 1085 | Kitty Essman's letter - according to its

(CA 5, 1977).

: . } contents sent under IRS auspices - produced a

Nor can IRS agents circumvent constitu-

d $ : i r which could

tional requirements by taking advantage of the | ocument from Defendant Warinne

56.

55.

not have been compelled by any legal process

even if it had been in existence prior to the

Essman solicitation. Accordingly, her letter,

with its threat to withhold excessively the

earnings of Defendant Warinner, pursuant to

§31.3402(£) (2)-1(e), constituted:

",..the equivalent of a search and

seizure - and an unreasonable search

and seizure - within the meaning of

the Fourth Amendment. Though the pro-

ceeding in question is divested of many

of the aggravating incidents of actual

search and seizure, yet, as before said,

it contains their substance and essence

and effects their substantial purposes

.-. illegitimate and unconstitutional

practices ... can only be obviated by

adhering to the rule that constitutional

provisions for the security of person

and property should be liberally con-

strued." Boyd v. U.S., 116 U.S. 616,

635, 6 S.Ct. 524, 534, 29 L.Ed. 746

(1886).

A federal officer charged with enforcement

of laws pertaining to counterfeiting received

telephone calls from the local police and the

manager of a hotel], indicating violation of

these laws being carried on in a room of the

hotel. After securing warrants for the arrest

57.

4 ke

a a Ninn FR Se Me Ye eT

of the tenants on charges of. violating local

criminal law, the local police made a search of

the room and, upon finding evidence indicating

counterfeiting, sent for the federal officer,

who came to the hotel and examined the evidence.

When the tenants returned, they were arrested

and searched by the local police and evidence

relevant to counterfeiting was given to the fed-

eral officer. On these facts the Supreme Court

1819 (1949), the trial court should have granted

Lustig's motion to suppress evidence gathered

in the search at his trial on counterfeiting

charges, because of federal participation in an

illegal search.

"We therefore accept as a fact that (the

federal officer) did not request the

search ... and that the search was not

undertaken by the police to help enforce-

ment of federal law. But search is a

functional, not merely a physical process.

Search is not completed until effective

appropriation, as part of an uninterrupted

transaction, is made of illicitly ob-

tained objects for subsequent proof of

an offense ... To differentiate between

participation from the beginning of an

58.

illegal search and joining it before it

had run its course, would be to draw too

fine a line in the application of the

Fourth Amendment prohibition as inter-

preted in Byars v. U.S., 273 U.S. 28,

71.L.Ed. 520, 47 S.Ct. 248 ... the deci-

Sive factor in determining the applica-

bility of the Byars case is the actuality

of a share by a federal official in the

total enterprise of securing and selec-

ting evidence by other than sanctioned

means ... Evidence secured through such

federal participation is inadmissible

for the same considerations as those

which made Weeks v. U.S., 232 U.S. 383,

58 L.Ed. 652, 34 S.Ct. 341, the governing

principle in federal prosecutions."

The rule enunciated in Knoll, Lustig, Byars

and Weeks nullifies any contention that the

Essman letter cannot be attributed to the

government. The specifics of the intercourse

between the IRS agents and Ms, Essman were

adduced at trial (Record, Vol. I, pp. 101-109;

Gov'ts Exs. 11, 12 and 13).

"The government cannot disown (the third

party) and insist it is not responsible

for his actions ... The government can-

not make use of (a third party) and

then claim disassociation through

ignorance ... As between the government

agent and (the cooperating third party)

each is deemed to have knowledge of the

59.

. pee ees

actions of: the other." Sherman v. U.S.,

356 U.S. 369, 373, 375 (1958); U.S. v.

Bueno, 447 F.2d 903 (CA 5, 1971); U.S.

v. Soto, 504 F.2d 557, 559, (CA 5, 1974).

Defendant submits: that criminalization

of Warinner's response to the Essman letter con-

stitutes an "insidious encroachment" on Defen-

dant's Fourth, Fifth and Sixth Amendment rights.

Justice Marshall's remarks, concurring in Brewer

v. Williams, 430 U.S. 387, 51 L.Ed. 2d 424, 442,

97 S.Ct. 1232 (1977) are especially appropriate

to the investigative techniques used vis-a'‘'-vis

this Defendant:

"It is equally important that the police,

as guardians of the law, fulfill their

responsibilities to obey its commands

scrupulously. For ‘in the end life and

liberty can be as much endangered from

illegal methods used to convict those

thought to be criminals as from. the

actual criminals themselves.‘ Spano v.

New York, 360 U.S. 315, 320-21, 3 L.Ed.

2d 1265, 79 S.Ct. 1202 (1959)."

The Brewer case involved the brutal murder

of a ten-year o1d girl, whereas in this case

Defendant is charged with conduct tantamount to

nothing more than a protest of government fiscal

60.

and taxing policy, protected by First Amendment

rights. IRS regulations dictated that Defendant's

protest be ignored. See 18 U.S.C. §1001 for the

requirement that a misstatement be material.

The standards enunciated below codify the

judicially-developed entrapment formulation

better than any compendium of case citations

and faithfully reflect the most recent U.S.

Supreme Court definition of entrapment in the

case of U.S. v. Russell, 411 U.S. 423, 93 S.Ct.

1637, 36 L.Ed.2d 366 (1973). Section 2.13 (1)

(b) of the Model Penal Code and Sections 702 (2)

and (3) of the proposed New Federal Code define

the conduct of the IRS agents and Ms. Essman

which compels suppression of the W-4E elicited

in response thereto:

"Both the Proposed New Federal Criminal

Code (1971), Final Report of the National

Commission on Reform of Federal Criminal

Laws, §702, and the American Law Insti-

tute's Model Penal Code, §2.13(1962),

adopt this approach to entrapment:

(Section 2.13 of the Model Penal. Code

provides:

61.

("(1) ‘A public law enforcement official

or a person acting in cooperation with

such an official (emphasis added) per-

petrates an entrapment if for the pur-

pose of obtaining evidence of the

commission of an offense, he induces or

encourages another person to engage in

conduct constituting such offense by

either:

("(a) making knowingly false representa-

tions designed to induce the belief that

such conduct is not prohibited; or

("(b) loying methods of persuasion or

inducement which creates a substantial

risk that such an offense will be

committed by persons other than those

who are ready to commit it (emphasis

added).

("(2) Except as provided in Subsection (3)

of this Section, a person prosecuted for

an offense shall be acquitted if he proves

by a preponderance of evidence that his

conduct occurred in response to an en-

trapment. The issue of entrapment shall

be tried by the Court in the absence of

the jury.

("(3) The defense afforded by this Sec-

tion is unavailable when causing or

threatening bodily injury is an element

of the offense charged and the prosecu-

tion is based on conduct causing or

threatening such injury to a person

other than the person perpetrating the

entrapment."

(Section 702 of the Proposed New Federal

Code, which represents the first federal

62.

codification of the judicially-developed

defense of entrapment, provides:

("(1) Affirmative Defense. It is an

affirmative defense that the defendant

was entrapped into committing the offense.

("(2) Entrapment Defined. Entrapment

occurs when a law enforcement agent in-

duces the commission of an offense, using

persuasion or other means likely to cause

normally law-abiding persons to commit

the offense.

Conduct merely affording a person an

opportunity to commit an offense does

not constitute entrapment.

("(3) Law Enforcement Agent Defined. In

this section 'law enforcement agent' in-

cludes personnel of state and local law

enforcement agencies as well.as.of the

United States, and any person cooperating

with such an agency.") (Emphasis added.)

Two questions were answered in Gouled v.

United States, 255 U.S. 298, 41 S.Ct. 261, 65

L.Ed. 647 (19@1) at 651, which bear directly on

the instant motion: (1) Is the secret taking,

without force, from the house or office of one

| suspected of crime, of a paper belonging to him,

of evidential value only, by a representative

of any branch or subdivision of the government

63.

a a

of the United States a violation of the Fourth

Amendment? (2) Is the admission of such paper

in evidence against the same person, when in-

dicted for crime, a violation of the Fifth

Amendment? This case involved secret taking of

an incriminating document by a friend of the

defendant, whose work as a government agent was

unknown to the defendant, who had given the

"friend" permission to be on the premises. The

U.S. Supreme Court answered both questions in

the affirmative and reversed defendant's con-

viction. Warinner submitted an incriminating

document to his friend Ms. Essman, who was the

unwitting agent of the government when she sub-

mitted it.

Careful scrutiny of all relevant precedents,

including those cited herein, reveals no recent

decision paralleling the case at bar to the de-

gree of similarity found in Boyd v. U.S., 116

U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), an

Older, but nonetheless vital and viable holding,

64.

the law and facts of which are identical in all

pertinent particulars to the instant case. Boyd

arose from an information filed by the United

States Attorney in a case of seizure and for-

feiture of property, seized by the collector as

forfeited to the United States, under the "Act

to Amend the Customs Revenue Laws", which pro-

vided that any person who, with intent to defraud

the revenue, imports or attempts so to do by

means of any false statement, written or verbal,

or any fraudulent or false invoice, affidavit or

letter, or who is guilty of any willful act or

omission “by means whereof the United States

shall be deprived of the lawful duties ... shall

be fined and/or imprisoned; and ... such merch-

andise shall be forfeited." The act further

empowered the Court to issue a subpoena to com-

pel production of documents; a defendant's

failure to produce such documents resulted in

forfeiture of the property.

In the instant case, Warinner's W-4E was

65.

compelled by the threat of forfeiture described

above.

"Reverting then to the peculiar phrase-

Ology of this Act and to the information

in the present case, which is founded on

it, we have to deal with an Act which

expressly excludes criminal proceedings

from its operation, although embracing

civil suits for penalties and forfeitures,

and with an information not technically

a criminal proceeding, and neither, there-

fore, wichin the literal terms of the

Fifth Amendment to the Constitution any

more than it is within the literal terms.

of the Fourth. Does this relieve the

proceedings or the law from being ob-

noxious to the prohibitions of either?

We think not; we think they are within

the spirit of both." Boyd at p. 752.

Defendant submits that the compulsive force

exerted by Kitty edith te letter is constitu-

tionally indistinguishable from that described

in Boyd and that suppression of the fruits of

such compulsion is mandated by the Boyd decision.

The ratio decidendi of Boyd would nullify any

requirement that the movant herein demonstrate

that he was the "focus of adversary proceedings",

Beckwith, supra, in order to be entitled to

Beckwith or Miranda-type warnings. Movant submits

66.

that, though such a showing was made, one. is not

required in order. to establish that the W-4E in

this case should have been suppressed. In

Beckwith, the defendant was given a Miranda

warning by the interviewing IRS agents, which

warning lacked only a statement 'that if the De-

fendant were unable to afford counsel that coun-

sel would be appointed to represent him‘ to make

it a complete Miranda advisement. Defendant

Beckwith was not threatened with the forfeiture

of his property to persuade him to make disclosures |

as was Defendant Warinner. Defendant Beckwith was

warned that any statements he made might be used

to incriminate him, in contrast to Warinner, who

was advised that he had to submit a W-4E without

any alterations or unauthorized additions or

suffer confiscation, all of which was done under

the auspices of the IRS by Essman's reference

thereto. |

The instant case presents us with a heretic

who denies the Constitutionality of the voluntary

67.

self-assessment system and the Internal Revenue

Service that enforces the volunteerism. His

dissent is not a defense to civil liability, but

the First Amendment must protect him from an

administrative criminalization of his refusal

to pay a debt he denies.

We do not have here the situation found in

U.S. v. Sacco, 428 F.2d 264 (CA 9, 1970) where

the intensive investigation of the appellant was

based upon his participation in organized crime;

nor is this a case like U.S. Vv. Swanson, 509

F.2d 1205 (CA 8, 1975) involving tax professionals

nor is it a case like Ojala, 544 F.2d 940 (CA 8,

1976) where the protester was selected on the

basis of his political office and the consequent

notoriety; nor again is it a case like Catlett,

584 F.2d 864 (CA 8, 1978), who alleged he was

prosecuted because of the publicity he received.

These were justifiable standards, whereas selec-

ting as defendants persons exercising their First

Amendment right to protest against the laws of

68.

the United States relating to the Internal Re-

venue Service clearly violates their constitu-

tional rights. (See U.S. v. Steele, 461 F.2d

1148 (CA 9, 1972). This is the basis for

Warinner's claim.

The critical distinction between Larry

Warinner and the Defendants in Ojala, Catlett,

and Swanson, supra, the recently decided cases

in the Eighth Circuit delineating the difference

between permissible and impermissible selective

prosecution, is this:

In each of those cases the Court found

that, in addition to the exercise of

constitutional rights by Defendants as

the basis for criminal prosecution,

("... a purpose [which], if established,

would fatally infect the prosecution by

denying appellant the equal protection

of the laws which is embodied in the due

process clause of the Fifth Amendment ..."

Ojala, supra, at p. 943) those Defendants'

cases each presented an aggravating fac-

tor of publicity-seeking and position

which purged the prosecution of the other-

wise "fatal infect(ion)" of retribution

for Defendants' exercise of protected

rights.

Larry Warinner is not a notorious tax pro-

tester, nor a tax professional, nor an elected

69.

official. The prima facie showing of unconsti-

tutional discrimination made in Ojala and Catlett,

supra, can be judicially noticed by this Court.

The testimony of the witnesses from the IRS at

the hearing held in this case February 19, 1979,

and the affidavits and exhibits from the Foster

case which persuaded the Ninth Circuit Court of

Appeals to vacate the convictions under 26 U.S.C.

§7205 combine to compel the conclusion that Larry

Warinner was prosecuted because he exercised his

First Amendment rights to protest the income

tax assessed on his wages. It is undisputed

that Warinner voluntarily disclosed his refusal

to voluntarily comply with IRS regulations, nor

is there any evidence that he sought or received

any publicity, which might resuscitate his pro-

secution from its fatally defective: condition,

i.e. based solely on his exercise of constitu-

tional rights when the government knew of others

similarly situated but declined criminal prose-

cution of them.

70.

Nothing less. than an evidentiary hearing

preceded by: disclosure of relevant IRS documents

will reveal the truth about this case,

The statistics presented by the United States

in the case of U.S. v. Oaks, 508 F.2a 1403 (9th

C. 1974) leave much to be:desired but they tend

to indicate that there is clear discrimination

against "tax protesters" in applying the stan-

dards of prosecution for both "willful failure

to file" violations and violations for filing

false Form W-4E under Sections 7203 and 7205,

respectively, of the Internal Revenue Code.

In this instance the government presented

statistics disclosing that it prosecuted only

tax protesters on §7205 violations for the tax

years 1970 through 1973, The government. statis-

tics revealed that only 24 cases of filing false

withholding statements were investigated by the

Intelligence Division of the Internal Revenue

. Service. All of these involved tax protesters.

Other violations of §7205 came to the attention

71.

of the Intelligence Division. The transcript

in the evidentiary. hearing on the selective pro-

secution motion in the Oaks case reads as follows

at'pp. 174-175 thereof:

"Q. Isn't it a fact that other people

besides tax protesters file improper

W-4 forms?

A. I am sure there must be some somewhere.

Q. It is a fact that a number of them

came to your attention in 1973, isn't

Lt?

A. Allegations came to our attention --

came to the Service's attention,

yes.

Q. And didn't you make on-the-scene

investigations and examine the W-4

forms?

A. By. "you", no, we did not make an

investigation in the Intelligence

Division of potential crime viola-

- tions. Examinations and inquiries

» were made by the Audit and Collection

functions.

Q. Working jointly with Intelligence?

A. The inquiries were made indepen- |

dently of the Intelligence Division.

It was not in any way a criminal

investigation,

Q. But there was no question that it

came to the attention of the Internal

Revenue Service?

A. There is no question,"

The Defendant. would ask the United States to

furnish statistics as to how many cases of false

W-4's and/or W-4E's came to the government's

72.

attention that they did not prosecute. That

information was not furnished in the Oaks: case

and it is believed it will present a pretty sorry

picture. It will show there were hundreds of

such violations which came to the attention of |

thé Internal Revenue Service but which they did

not prosecute, in the opinion of the attorney

for the Defendant. This Defendant and Garth

Good are the only two employees of North Central

Airlines who have been prosecuted, though Payroll

Clerk Kitty Essman testified at Good's trial that

approximately 75. to 90 irregular or. suspicious

W-4's and W-4E's were then on file at North

Central.

It is not sufficient for the government to

show which cases have been referred to the In-

telligence Division of the Internal Revenue for

‘criminal prosecution. It is more important to

show which cases. were determined not to be

worthy of criminal prosecution so that they were

not referred to. the Intelligence Division for

73.

criminal prosecution. It is these statistics

that the government failed to produce in the

Oaks case. These statistics are believed to be

available and can be secured by the local audit

division of the Internal Revenue Service from

the complete records which they maintain on

information coming to them and the disposition

thereof.

Guidelines for referral of cases to the

Intelligence Division in the ordinary cases are

to be found in the published manuals of the

Internal Revenue Service. These should be and

can be supplied by the Internal Revenue Service

relating to §7205 violations which were not re-

ferred to the Intelligence Division for prose-.

cution. The standards in the manual for the

ordinary taxpayer and the vocal tax protester

are completely different. The latter have not

been published by the Internal Revenue Service.

It is hereby requested that defense counsel be

permitted to view all memoranda relating to tax

'

74.

protesters with the caveat that they may not be constitutionally infirm. The lower court erred

disclosed to anyone else including the Defen- in refusing to order disclosure of. the data

dant without permission of the court. It is sought by Defendant and this Court. should va-

generally the rule that when the allegations of | cate the conviction and remand this case for a

discriminatory prosecution pass the threshold proper evidentiary hearing.

of frivdlity an evidentiary hearing should be The Court of Appeals' discussion of Warinner's

granted, as in the Eighth Circuit cases of challenge based on discriminatory prosecution

Mirabile, supra, and Swanson, supra. It is a concedes that he established the fact that he

Sine gua non of such a hearing that the court was singled out for prosecution while others

issue an order directing the IRS to produce similarly situated have not been prosecuted for

statistics relating to: how many false or in- like conduct, but declares that he "has failed

correct W-4 or W-4E forms are brought to the to show his selection was based impermissibly on

attention of: 1) the Audit Division and 2) the exercise of his First Amendment rights” (p. 9).

Collection and, of these, how many are referred The attention of this Court is respectfully in-

to the Intelligence Division for criminal inves- vited to the "Portions of the Trial" section of

tigation and prosecution and 3) the Intelligence this petition, which, it is submitted, belies |

Division and how many are investigated and re- that conclusion.

commended for criminal prosecution. The criteria Finally, petitioner submits the Appellate

for 1) referral, 2) investigation, and 3) crim- Court erred in rejecting his claim that non-

inal prosecution would also assist the court in registered. voters constitute a cognizable group,

determining whether the basis for selection is based on cases all of which were decided prior

75. 76.

to Taylor and, of course, Duren; this is so par-

ticularly in the aftermath of the recent decision

of the United States Supreme Court in Duren. v.

Missouri, 99 S.Ct, 1623, 58 L.Ed.2d 317 (1979),

which reiterated the three-part test set forth in

Taylor v. Louisiana, 419 U.S. 522 (1975), under

which a defendant must show the following to

establish a prima facie case of violation ae

the fair cross-section requirement: 1) that the

group allegéd to be excluded is a "distinctive"

group in the community; 2) that the group's re-

presentation in the source from which juries are

selected is not fair and reasonable in relation

to the number of such persons in the community;

and 3) that this underrepresentation results from

systematic exclusion of the group in the jury

selection process,

Those citizens in our society who do not

register to vote, among whom are the appellant

and virtually everyone sympathetic to his protest,

are: 1) "distinctive" because of their enormous

77.

numbers and these disaffection with the present

political process, 2) not represented on any

juries in the District of Minnesota, which cannot

be fair and reasonable, and 3). systematically

excluded by the jury selection process, i.e.

none but registered. voters are considered.

No showing of "invidious discrimination"

in voter registration procedures is required as

is conclusively established by Taylor, supra,

and Duren, supra.

CONCLUSION

Because 1) the production of the W-4E

here at issue violated Defendant's Fourth,

Fifth, and Sixth Amendment rights, 2) the De-

fendant's prosecution was undertaken to deter

the exercise of First Amendment rights and 3)

the jury which decided his case was not a fair

cross-section of the community, the Court

should grant certiorari and resolve the legal

78.

conundrums and alleviate the injustice of the

Court of Appeals' affirmance of petitioner's

conviction. CERTIFICATE OF SERVICE

Respectfully submitted,

I hereby certify that I have served three

. copies of the foregoing Petition for Writ of

— Certiorari by despositing the same in the U.S.

William A, Cohan Mail, Denver, Colorado, with sufficient airmail

Penthouse Suite i ffixed th dd d :

Steele Park Building postage prepaid affixed thereto, addressed to

50 South Steele Street Solicitor General

Denver, Colorado 80209 Department of Justice

(303) 321-2900 Washington, D.C. 20530

Attorney for this 13th day of December, 1979.

Appellant-Petitioner

December 11, 1979 Re ACP eae ihen vse Saar

William A. Coha