Appendix — Warinner v. United States

JAN 9 1980

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‘

IN THE TRAE ROUAK, JR,

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No. 79-932

LARRY L. WARINNER,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

SUPPLEMENTAL APPENDIX TO

PETITION FOR CERTIORARI

William A. Cohan

Suite 1000

50 So. Steele Street

Denver, CO 80209

Attorney for

Defendant-Petitioner

rt cee, nee ee ens cae ced

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

UNITED STATES OF AMERICA,

Appellee, Appeal from the

United States

District Court

for the District

of Minnesota

Ve

LARRY L. WARINNER,

+ eee ee F HF

Appellant.

Submitted: September 14, 1979

Filed: October ll, 1979

Before BRIGHT and HENLEY, Circuit Judges, and

REGAN, Senior District Judge.*

HENLEY, Circuit Judge.

This is an appeal from a conviction and

sentence following a jury trial in the United

States District Court for the District of Minne-

sota, for willfully supplying false and fraudu-

lent federal withholding tax information in

violation of 26 U.S.C. § 7205. Appellant attacks

his conviction contending that the district court

erred in denying his motions: (1) to suppress a

certain Form W-4E, (2) for an evidentiary hearing

on the issue of selective prosecution, and (3)

to dismiss because the jury pool did not include

nonregistered voters. Finding no error, we affirm.

On April 1, 1976 Larry W. Warinner filed a

Form W-4e with his employer, North Central Air-

Lins. By submitting this withholding tax

exemption form, Warinner indicated that his emp-

loyer should not withhold federal income tax from

his salary because he incurred no federal income

tax liability for 1975 and anticipated he would

incur no federal income tax liability for 1976.

Although Warinner earned $31,567.21 in 1975 and

$34,324.55 in 1976, he filed the Form W-4E because

of political and legal convictions. Warinner

attached numerous documents to his income tax

withholding exemption form to explain the various

grounds for his tax protest. The Form W-4E,

without attachments, is reproduced as an

2.

appendix hereto.

Following Warinner's submission of the

suspect Form W-4E, William C.Tschilda, a Special

Agent for the Internal Revenue Service (I.R.S.),

sent a letter to Warinner provicing him with

information concerning eligibility for use of the

Form W-4E and advising him of penalties for false

or fraudulent information on the tax form.

Because Warinner did not respond to this letter,

Special Agent Tschilda attempted to interview

Warinner about his Form W-4E. Warinner refused

to be interviewed and asked Tschilda to send him

an explanatory letter. Special Agent Tschilda

sent such a letter and invited Warinner to meet

him at his office.

Warinner was also notified of problems with

his Form W-4E by his employer, North Centra Air-

lines. In August, 1976 North Central received

a letter from the I.R.S. indicating that Warinner's

Form W-4E might violate certain I.R.S. regulations.

The letter disclosed that under I.R.S. regulation

3.

31.3402 (f) (2)-l(e), the agency disregards altered

or amended withholding exemption certificates.+

Because Warinner apparently had violated the

regulation by attaching various documents to his

Form W-4E, Kitty Essman, a payroll manager at

North Central, immediately sent a note to Warinner

indicating that his Form W-4E was invalid and

suggesting that he submit a Form W-4 or a new

Form W-4E without alterations or remarks. The

Essman note concluded that failure to submit a

new form would result in federal income tax with-

holding based on the rate for a single person

claiming no exemptions.

Thereafter on September 15,1976 Warinner

submitted a new Form W-4E to his employer

without alterations or remarks certifying that

2 This

he incurred no tax liability for 1975.

form provided the basis for Warinner's subsequent

indictment and conviction,

On appeal, Warinner contends first that

the subject Form W-4E involved an unlawful search

4.

in violation of his fourth amendment rights,

compelled self-incrimination in violation of his

fifth amendment rights, and was obtained without

the assistance of counsel in violation of his

sixth amendment rights.

'His fourth amendment argument is based on

the theory that Kitty Essman's note advising

Warinner to file a new Form W-4E or W-4 consti-

tuted an unreasonable search and that his response

to that note constituted a.seizure. Recognizing

that the Seat amendment only extends to searches

conducted by the government, Burdeau v. Mc Dowell,

256 U.S. 465 (1921); United States v. Haes, 55l

F.2d 767 (8th Cir. 1977), Warinner argues that

Kitty Essman was an agent of the I.R.S.

Appellant's position, however, is untenable.

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

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 instigation or

5.

participation of government agents.

First, Ms. Essman, the North Central pay-

roll manager, requested that Warinner submit a

new withholding form at least ——" for the

company's Own purposes. Because I.R.S. regula-

tions indicated that an altered employee with-

holding exemption certificate may result in extra

tax liability, Ms. Essman asked Warinner to file

a new form for the purpose of helping the employee

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

I.R.S. informed Ms. Essman of the potential in-

validity of Larry Warinner's tax withholding form,

the I.R.S. did not ask her to request that

Warinner file a new Form W-4E. The I.R.S. merely

noted that the Internal Revenue Code does not

require an employer to ascertain the correctness

6.

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

legal responsibility was to inform the I.R.S. of

a potentially invalid certificate,

The fact that in part the I.R.S. regulations

consequentially may have motivated Ms. Essman to

request a new withholding form is not in itself

sufficient to create a government act within the

ambit of the fourth amendment. Cf. Meister v.

Commissioner, 504 F.2d 505, 510 (3rd Cir. 1974).

But even assuming Kitty Essman was acting

on behalf of the I.R.S., 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 sub-

poena of an invoice which showed that importers

were fraudulently claiming excess duty exemptions.

Boyd, however, involved compulsory production of

evidence under a subpoena. Here, Warinner's

filing of the Form W-4E was not compulsory, but

7.

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 aed

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 change the essen-

tially voluntary nature of his act. Warinner's

voluntary filing simply is not entitled to fourth

amendment protection. See Schneckloth v.

Bustamonte, 412 U.S. 218 (1973).

Appellant's fifth amendment argument that

Kitty Essman's note compelled him to incriminate

himself by requiring him to furnish the Form

W-4E is also unconvincing. Numerous cases in

this circuit have held that it is not a violation

of the fifth amendment to require the filing of

tax forms. Stuart v, Department of Finance &

Administration, No, 79-1067 (8th Cir. May 7, 1979);

United States v. Silkman, 543 F.2d 1218 (8th

Cir. 1976), cert. denied, 413 U.S. 919 (1977);

8.

United States v. Daly, 481 F.2d 28 (8th Cir.),

cert. denied, 414 U.S. 1064 (1973).

A fortiori, where Warinner was not re-

quired 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 failure 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

requirement does not, of course, apply to private

parties. Moreover, the Supreme Court has re-

fused to extend the Miranda requirement to pre-

custodial interrogations, Beckwith v. United

States, 425 U.S. 341, 345 (1976), and this court

has specifically rejected application of Miranda

to precustodial interrogations involving investi-

gations of possible violations of the Internal

9.

Revenue Code. United States v. Hiken, 458 F.2d

a

24 (8th Cir. 1972); United States v. MacLeod,

“as

436 F.2d 947 (8th Cir.), cert. denied, 402 U.S.

907 (1971); United States v. Brevik, 422 F.2d

449 (8th Cir.), cert. denied, 398 U.S. 943

(1970). Because the Essman note was private

action as well as precustodial, the Miranda

rationale simply does not come into play.

Warinner next argues that his conviction

was invalid because he was selectively prosecuted

as a tax protester for exercising his first

amendment rights and that he should have been

granted a full evidentiary hearing to determine

whether selective prosecution had occurred. The

factual basis for Warinner's claim is that only

his case was forwarded to the United States

Attorney's office for prosecution even though a

number of other cases were referred from North

Central to the Criminal Division of the I.R,S.

because of possible fraud in the filing of the

cs =

W-4 and W-4E withholding statements. >

10.

To determine whether a party has established

a prima facie case of selective prosecution suffi-

cient to warrant a hearing, courts have generally

required that the party demonstrate that (1)

others similarly situated have not been prosecuted

for like conduct, and (2) his selection was based

on an impermissible ground such as race, religion,

or exercise of his constitutional rights. United

States v. Catlett, 584 F.2d 864 (8th Cir. 1978);

United States v. Ojala, 544 F.2d 940 (8th Cir.

1976); United States v. Berrios, 501 F.2d 1207

(2nd Cir. 1974) .4 Since the appellant was

selected by the I.R.S. criminal division for

prosecution while other North Central employees

similarly situated were not charged, Warinner

arguably may have met the first prong of the

test for selective prosecution. Appellant,

however, has failed to show his selection was

based impermissibly on exercise of his first

amendment rights.

ll.

ne LPT NIE GE A — ee Set) > > See eee 7 aay

Warinner was a flagrant tax violator who

had failed to file a federal income tax return

Since 1972 and who had come to the attention of

the I.R.S. routinely in connection with his

irregular tax withholding forms. While the-

I.R.S. may have selected Warinner's case because

of the easy detectability and proof of his fla-

grant tax violations, “the conscious exercise of

some selectivity in enforcement is not in itself

a federal constitutional violation". ler v.

Boles, 368 U.S. 448, 456 (1962). We thus hold

that appellant did not establish a prima facie

case of selective prosecution sufficient to

warrant a full evidentiary hearing.

Finally, Warinner contends that the jury

pool did not represent a fair cross-section of

the community because it consisted only of

registered voters. Warinner argues that non-

registered voters constitute a distinctive group,

Taylor v. Louisiana, 419 U.S. 522, 530 (1975),

and the exclusion of nonregistered voters from

12.

the jury pool deprived him of persons sympathetic

to his cause.

Nonregistered voters, however, do not

constitute a cognizable group, United States Pee

Freeman, 514 F.2d 171, 173 (8th Cir. 1975); and

various appellate courts, including this court,

have upheld the use of voter registration lists

as sources of jurors. United States v. Grismore,

546 F.2d 844 (10th Cir. 1976); United States v.

Goff, 509 F.2d 825 (5th Cir.), cert. denied,

423 U.S. 857 (1975); Hallman v. United States,

490 F.2d 1088 (8th Cir. 1973).

Absent a showing of invidious discrimination

in voter registration procedures or existence of

barriers to registration, and no such showing is

made or alleged here, we reject appellant's

challenge to the jury pool. Cf. Hallman v.

United States, supra, 490 F.2d at 1092.

Finding no error in the proceedings before

the district court, we conclude that the judgment

of conviction should be, and it is in all things

13.

affirmed.

*

The Honorable John K,. Regan, United States

Senior District Judge, Eastern District of

Missouri, sitting by designation.

Iregulation 31.3402 (£) (2)-lle) provides in

pertinent part that:

- « - Any alteration of or unauthorized

addition to a withholding exemption

certificate shall cause such certificate

to be invalid, .. . If an employer re-

ceives an invalid withholding exemption

certificate, he shall consider ita

nullity for purposes of computing

withholding; he shall inform the employee

who submitted the certificate that it is

invalid, and shall request another

withholding 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

claiming no exemptions ....

war inner also filed a Form W-4E on

April 20, 1977 which includes tax protest

attachments. Warinner has not filed any income

tax returns since 1972.

33n his brief, Warinner also reveals that

only tax protesters were prosecuted for violation

of § 7205 for the tax years 1970-73 and that the

standards in the I.R.S. manual are completely

different for ordinary taxpayers and the vocal

tax protester.

Léa.

4 For a list of appellate courts recognizing

this test, see United States v. Johnson, 577 F.2d

1308 (5th Cir. 1978).

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

15.

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 79-1327. September Term, 1979

UNITED STATES OF

AMERICA, Appeal from the United

States District Court

for the District of

Minnesota

)

)

)

Appellee, )

vs. )

)

LARRY L. WARINNER, )

)

)

Appellant.

Petition of appellant for rehearing filed

in this cause having been considered, it is now

here ordered by this Court that the same be,

and it is hereby, denied.

November 14, 1979

COUNTY OF DENVER )

) ss. AFFIDAVIT OF SERVICE

STATE OF COLORADO )

I hereby certify that I ite served three

copies of the foregoing Supplemental f&ppendix

in Case "0: 79-932 by depositing the same in

the U. S. Mail, Denver, Colorado, with suffi-

cient postage prepaid affixed thereto, addressed

to:

Solicitor General

Department of Justice

Washington, D.C. 20530

this day of December, 1979,

William A. Cohan

The undersigned personally appeared before

me this day of December, 1979, and swore

to the veracity of the foregoing affidavit.

Notary Public

My Commission Expires: