Petition — Sparks v. United States

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49-1148 DEC 26 1979

~ MARL RODAK, JR., CLERK

UNITED STATES SUPREME COURT So ty ae

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs. No. T8=t632

SETH 0. SPARKS, _

Defendant—Appelliant,

PETITION FOR A WRIT OF CERTIORARI

Charles F. Sandoval (R.E. Thompson, United

States Attorney, with him on the brief)

for Plaintiff-Appellee

Seth O. Sparks

Pro Se

OPINIONS BELOW. ...

JURISDICTION .

QUESTIONS PRESENTED .

INDEX

CONSTITUTIONAL PROVISIONS INVOLVED .

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT .

CONCLUS

APPENDIX A (Opinion of the Court

Appeals)

IONS .

ACT OF CONGRESS. ..

CONSTITUTION OF THE UNITED STATES

CASE CITATIONS

Fourth Amendment .

Fifth Amendment .

Sixth Amendment

SUPREME COURT RULES

STATUES

18

18

18

26

28

U.S.C.

U.S.C.

U,S.C.

U.S.C.

GuBele

287

495

641

7206 (2)

1254 (1)

® @ 2

- as

iS. =

a

. 4,11,12

-3,13,14,15

3,13,14,15.

CASES

ACT OF CONGRESS ... .-

ALRIDGE ¥. U.Si «. ‘

283 U.S. 309 (1931)

55 FreahaDe 229 * * J s —

HAM B. SOUTH CAROLINA .

409 U.S. 524 (1973)

MIRANDA V. Us8. * 2 > e

384 U.S. 324 (1969)

OROZCO V. TEXAS... .

394 U.S. 343 (1969)

PEOPLE V. HARRELL . .

247 N.W. 2d 829 (1976)

RISTANIO V. ROSS... .-

424 U.S. 589 (1976)

RULE (19 B) * ° * ° ® e

U.S. V. BELL . « « °

573 F. 2d 1040 (8thCir.,

U.S. VW. CARTER... .«

44P F. 2d 1132 (6th Cir., 1971)

U. S. V. JOHNSON. .. .

527 F.2d 1104 (4th Cir.,

Us S. V. MARA 2 * e e

410. U.S. 19 (1972)

U.S. V. OLIVER... °

505 F.2d 301 (7th Cir.,

U. S. V. ROBINSON...

466 F.2d 780 (7th Cir., 1972

U.S. V. ROBINSON . .

485 F. 2d 1157 (3rd Cir., 1973)

ii

14,15,

15

ell

9,10,

-17,18

-10

10

-10

12,13

5

-10

10

16

11

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1979

No.

Seth O. Sparks,

Petitioner,

vs.

The United States of America

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The Petitioner, Seth O. Sparks, prays

that a Writ of Certiorari issue to review

the opinion and judgement of the Court of

Appeals for the Tenth Circuit rendered in

these proceedings on November 23, 1979.

OPINIONS BELOW

The opinion of the Court of Appeals,

as yet unreported, appears at Appendix

A, infra, pages 15 - 22, The opinion of

the Dederal District Court for the

District of New Mexico, is unreported.

JURISDICTION

The opinion of the Court of Appeals

of the Tenth Circuit affirming the

District Court judgment was entered on

November 23, 1979 (Appendix A, infra,

page 15 ). The jurisdiction of this

Court is invoked under 28 U.S.C. §1254

(1).

QUESTIONS PRESENTED

Petitioner was a tax return

preparer, who both prepared federal

income tax returns and purchased, at

a discount, the right to tax refunds.

During an IRS agent stated to

Petitioner, the IRS agent stated to

Petitioner that he was investigating

illegal aliens and further that

Petitioner was under arrest. Subsequent

to his arrest, Petitioner was forced

to furnish handwriting exemplars to

the Grand Jury. Later, at the time

of trial, the Trial Court refused to

ask certain voir dire questions re-

lating to possible racial prejudice on

the part of the prospective jurors,

even though requested to do so by

Petitioner's attorneys. The questions

thereby arising are:

1. Whether the actions of

the Internal Revenue Service Agent,

in the course of his investigation,

violated Petitioner's Constitutional

rights against unreasonable searches

and seizures, against self-

incriminations and right to counsel.

2. Whether the requirement that

Petitioner furnish handwriting

exemplar to the Grand Jury violates

against self-incrimination and

further violates public policy concern-

ing the Grand Jury.

3. Whether the Trial Court's

refusal to propound voir dire questions

relating to racial prejudice violated

Petitioner's Constitutional right to be

tried by a fair and impartial jury of

his peers.

CONSTITUTIONAL PROVISIONS INVOLVED

I. CONSTITUTION OF THE UNITED

STATES, AMENDMENT IV.

"The right of the people to

be secure in their person, houses,

papers, and effects, against

unreasonable searches and seizures,

shall not be violated, ...".

II. CONSTITUTIONAL FO THE UNITED

STATES, AMENDMENT V.

",.-nor shall (any person)

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...".

III. CONSTITUTION OF THE UNITED

STATES, AMENDMENT VI.

"In all criminal prosecutions,

the acused shall enjoy the right to a

speedy and public trial, by an impartial

jury... and to have the assistance of

counsel for his defense."

Iv. 18 U.S.C. 287

"Whoever makes or presents to

any person or officer... of the United

States, or to any department of agency

thereof, any claim upon or against the

United States, or any department or

agency thereof, knowing such claim to

be false, fictitious, or fraudulent ...".

Ve. 18 U.S.C. 495

"Whoever falsely makes, alters,

forges or counterfeits any...writing, for

the purpose of retaining or receiving, or

enabling any other person, to either

directly or indirectly, obtain or receive

from the United States... any sume of

money; or whoever utters or publishes as

true any such false, forged, altered or

counterfeited writing, with intent to

defraud the United States, knowing the

same to be false, altered, forged or

counterfeited, shall be quilty under this

section."

VI. 18 U.S.C. 641

"Whoever embezzles, steals,

purloin or knowling converts to his

own use...any records, vouchers, money,

or thing of value of the United States;

or whoever receives, conceals or re-

tains the same with intent to convert

it to use of gain, knowing it to be

embezzled, stolen, prulonned or con-

verted shall be quilty under this

section."

STATEMENT OF FACTS

The Privacy Act of 1974 found in your

federal income tax forms says:

The Privact Act of 1974 says that each

federal agency that asks you for infor-

mation must tell you:

A. Its legal right to ask for the

information and whether the law says

you must give it.

B. What a major purposes the agency

has in asking for it, and how it will

be used.

C. What could happen if the agency

does not receive it.

Rule (19 B) of the Supreme Court:

B. Where a court of appeals has rend-

ered a decision in conflict with the

decision of another court of appeals on

the same matter; or has decided an im-

portant state or territorial question

in a way in conflict with applicable

state or territorial law; or has decid-

ed an improtant question of federal law

which has not been, but should be,

settled by this court; or has decided

a federal question in a way in con-

flict with applicable decision of this

court; or has so far departed from the

accepted and usual course of judicial

proceedings, or so far sanctioned such a

departure by a lower court, as to call

for an exercise of this court's power

supervision.

STATEMENT OF FACTS

A. The Alleged Offenses:

The Petitioner was self-employ-

ed in Hobbs, New Mexico, as an income tax

preparer. Petitioner, as a part of his

business, was also a "discounter", and

as such would buy an individual's right

to his tax refund. This would allow the

individual taxpayer to have cash

immediately, and the party would not be

required to wait for hos or her

Government refund check. Petitioner

would receive an oral assignment of the

individual's right to his or her check

and/or a written power of attorney, so

that the Defendant could cash the refund

check when received.

Petitioner began requiring written

powers of attorney only after he had

discussed procedure with an Internal

Revenue Agent. He was informed at that

time that the oral assignment of right

was not sufficient, but his business and

porcedures were acceptable to the IRS if

he would acquire written powers of

attorney.

B. Investigation of the Internal

Revenue Service:

The Petitioner was contacted

by a special agent of the Internal

Revneue Service, who confiscated

Petitioner's records incident to his

tax preparer business. When taking

Petitioner's records, the agent misled

Petitioner as to his purpose in

taking the records by stating that the

Agent was investigating illegal aliens.

At no time was the Petitioner aware

of the fact that his business operation

or himself personally, was being

investigated. The Petitioner was told

of his right to have an attorney

appointed for him by the Court if he

could not afford one, and that he could

confer with this attorney before any

questioning.

C. Grand Jury Investigation:

The Petitioner was required by

Order of Judge Edwin L. Mechem to furnish

handwriting exemplars to the Grand Jury.

The Grand Jury then returned an

indictment on April 5, 1978, which includ-

ed 19 counts against the Petitioner,

including three counts of forging U.S.

Treasury checks, in violation of

18 U.S.C. 495; three counts of theft of

Governmental property, in violation of

18 U.S.C. 495; three counts of theft of

Govermental property, in violation of

18 U.S.C. 641; four counts of false

claims, in violation of 18 U.S.C.287;

nine counts of aiding and assisting in

the preparation of false and fraudulent

income tax returns, in violation of

26 U.S.C. 7206 (2)

D. Trial Proceedings:

Petitioner's attorneys requested

certain voir dire questions to be asked

by the Trial Court. These questions

related to possible racial prejudice on

the part of the prospective jurors. The

Trial Court refused to ask these or any

questions relating to racial prejudice.

On June 1, 1978, the jury return-

ed a verdict of guilty as to one count

of forging a United States Treasury check,

the true payee of which was Margaret

Rogers, in violation of 18 U.S.C. 495,

one count of theft of Government property

incident to the return prepared for

Margaret Rogers, in violation of

18 U.S.C. 641, and two counts of false

Claims incident to those returns

prepared for Margaret Rogers and

Roberto Hernandez, in violation of

18 U.S.C. 287. The jury returned a

verdict of not guilty as to all other

counts (the remaining fifteen counts)

contained in the indictment.

It should be noted that

Margaret Rogers and Roberto Hernandez

are “non-black victims". It should be

further noted that Petitioner was

acquitted as to all counts dealing with

"black victims." Also, Petitioner him-

self is black,

REASONS FOR GRANDING THE WRIT

l. The decision below conflicts

with the Court's ruling in Ristaino vs.

Ross, 424 U. S. 589 (1976), and the pre-

ceedings cases on which Ristaino is based.

This Court, in Alridge vs.

U.S., 283 U.S. 308 (1931), and Ham vs.

South Carolina, 409 U.S. 524 (1573); held

that voir dire inquiry into possible

racial prejudice was an issue of

Constititutional stature.

"The inquiry as to racial preju-

dice derives its Constitutional

stature from the firmly estab-

lished precedent of Alridge and

the numerous state cases upon

which it relies, and from a

principal purpose as well as

from the language of those who

adopted the Fourteenth

Amendment." Ham, Supra, at 528.

This Court's ruling in Ristaino,

supra, somewhat limited the ruling in

Ham, supra, and held that the need to

question veniremen specifically about

recial prejudice did not rise to

Constitutional dimensions in every case.

The Court held that the need was still

of Constitutional stature in those

cases were racial prejudice was likely,

however.

This Court, in Ristaino, supra,

did admonish, however, the Trial Court to

inquire as to racial prejudice even in

those cases wi.ere the need is not

Constitutionally protected.

"The wiser course generally is to

propound appropriate questions

designed to identify racial

prejudice if requested by the

Defendant." Ristaino, supra,

Footnote 9, page 597.

The Trial Court is this cause

disregarded the Supreme Court's

admonition, and further Petitioner's

attorney at the Trial Court did

request a number of questions relating

to racial prejudice.

In an attempt to interpret the

Supreme Court's holding in kistaino,

supra, the Eighth Circuit Court of

Appeals Stated,

"Of course a Federal Court

does have a non-Constitutional

duty to inquire as to possible

racial bias on the jury panel

when the Defendant is a member

of a racial minority group.

(Emphasis by the Court)

U.S. vs. Bell 573 F.2d 1040,

1043 (8th Cir., 1978).

In fact, in Federal prosecutions

following Alridge, supra, the Trial

Judge has been required by the

reviewing courts, when requested, to

inquire regarding racial prejudice

of the veniremen when the Defendant

is black. U. S. vs. Robinson, 466

F.2d 760 (7th Cir., 19/2): U.S. vs.

Johnson, 527 F.2d 1104 (4th Cir.,

1975); U.S. vs. Robinson, 485 F.2d 1157

(3rd Cir., 1973); U. S. vs. Carter,

460 %.420@ 1132 (GtH Car., 1971) «

The state courts have also attempted

to follow the Supreme Court's holdings in

Ristaino, supra, but have apparently

had some difficulty in so doing. Justice

Levin, in his dissenting opinion, in

People v. Harrell, 247 N.W. 2d 829, 833

(1976), stated:

"We would hope that where there

are significant racial overtones,

probing questions are necessary

to enable a litigant to exercise

intelligently his rights of

10

chalenge and that the refusal to

ask such questions is an abuse

of the Judge's discretion to

control voir dire examination."

Apparently, the Federal District

Court of New Mexico, and the Court of

Appeals for the Tenth Circuit disagree

in their interpretation of Ristaino,

supra, with the Courts cited above, in

cases that the Trial Court has a duty

to inquire as to whether the veniremen

are racially prejudiced.

This Court should grant certiorari

tothe Court of Appeals of the Tenth

Circuit to insure uniformity between the

lower courts with its decision in

Ristaino, supra, and to clarify the

Trial Court's duty in inquiring as to

possible veniremen racial prejudice

and the consequences of failing to do so.

2. The Prosecutorial Use of the

Grand Jury Violates Petitioner's Con-

stitutional Guarantees Against Self-

Incrimination And is also against Public

Policy, And Constitutional Policy concern-

ing The Grand Jury:

The decisions of Judge Mechem,

the Trial Court, and the Court of Appeals

for the Tenth Circuit that the Grand

Jury could require Petitioner to furnish

handwriting exemplars’ required the

finding that the Grand Jury is not

subject to Constitutional limitations

which protect the individual from

ll

unreasonable searches and seizures and

from self-incrimination. As Justice

Douglas and Justice Marshall state in

their dissenting opinion in U.S. vs.

Mara, 410 U.S. 19 (1972) to accept

that position is to breach the

Constitution of the United States and

over 200 years of American jurispudence,.

Allowing the prosecutor and police,

througy§ the Grand Jury, to compel incrim-

inating statements and obtain

incriminating pieces of evidence as

in the instant case, would

",..serve only to encourage

prosecutorial exploitation

of the Grand Jury process, at

the expense of both

individual liberty and the

traditional neutrality of

the Grand Jury. Thus, if the

Grand Jury may summon

criminal suspects for such

purposes without complying

with the Fourth Amendment,

it will obviously present

an attractive investigative

tool to prosecutor and

police." Mara, supra, at

47 (Marshall dissenting).

Justice Douglas described the result

of allowing the Grand Jury to breach

Constitutional rights in his dissenting

opinion, in Mara, supra, at page 29:

"Are we to stand still and watch

the prosecution evade its own

Constitution restriction on its

12

— al?

~

powers by turning the Grand Jury

into its agent? Are we to allow

the Government to usurp certain

powers granted to the people by

the Magna Carta and codified into

our Constitution? That will

be the result of the majority

opinion unless we continue to

apply to the Grand Jury the pro-

tection of the Fourth Amendment."

The Grand Jury has already

become a tool for the prosecutor,

as evidenced by Judge William

Campbell's statement at 55 F.R.D.

229, 253 (1972).

"This great institution (the

Grand Jury) of the past has

long ceased to be the guardian

of the people for which prupose

is created at Runnymede.

Today it is but a convenient

tool for the prosecutor..."

This Court's majority opinion in

Mara,supara, allows the prosecution or

the police to obtain incriminating evidence

and to compel incriminating statements

by the accused under the guise of the

Grand Jury and insofar as it does so,

invalidates the Fourth and Fifth

Amendments of the Constitution of the

United States.

3. Petitioner's Constitutional

Rights as Guaranteed by the Fourth

Fifth and Sixth Amendments to the

United States Constitution Were Violated

By the Government Agents In Their Investigat-

ion.

13

This Court, in Miranda v. Arizona,

384 U. S. 436 (1966) held that a Defend

dants conviction must be reversed if it

is based on testimonial evidence re-

cieved from the acussed if the acussed's

Constitutional rightg were not explain-

ed to him prior to the confession.

This Court, in Miranda, supra, re-

quired that law enforcement agents

explain to an accused that he has the

right to remain silent, that anything

the accused says can and will be used

against him in a Court of law, and

that the acussed has the right to con-

sult with an attorney, either retained

or appointed, prior to and during the

interrogation.

The Court of Appeals for the Tenth

Circuit, in its opinion, states that

the Petitioner was not in custody at

the time he was interrogated, so a

"non-custodial Miranda warning" is

all that is required. The "non-

custodial Miranda warning" differs

from the traditional Miranda warning

only in that the acussed is not instruct-

ed that if he cannot afford an attorney,

he has the right to an appointed attorney.

What this differentiation means, in

reality, is that a person who can afford

an attorney can have a lawyer with him

when he is being interrogated in a

non-custodial situation, however, a

poorer person, or an indigent who cannot

afford an attorney is effectively preclud-

ed from being represented by an attorney

under these circumstances. Thus, an

indigent's Constitutional right to be

represented by an attorney during

questioning is conditioned on his wealth

14

and thus violated. This results ina

complete disagreement with this Court's

ruling in Miranda, supra, and the Fifth

and Sixth Amendments to the Constitution

of the United States in that preclaudes

equal protection under the laws, and

the conviction is not based on due process

of law.

Further, the Court of Appeals for

the Tenth Circuit misapplied this Court's

ruling in Miranda, supra, in that they

implied their decision would be differ-

ent, with respect to the Miranda warning,

if the Petitioner had been in custody

at the time of the questioning. This

Court held in Miranda, supra, at pages,

444, 445, 467, 477 and 478 that an

accused's privilege against self-

incrimination is imperiled and thus the

warning must be given when one is "de-

priof his freedom of action in any

Significant way".

This Court also held in Orozco vs.

Texas, 394 U.S. 324 (1969) that the

warnings were required prior to inter-

rogating a suspect in his own bedroom

if it appears to the acused that he is

not free to go where he pleases.

The Seventh Circuit, in its

decision in U.S. v. Oliver, 505 F.2d

301, 304 (7th Cir., 1974), interpreted

this Court's Miranda holding in even

stronger terms stating:

"The application of Miranda does

not turnon such a simple axis as

whether or not the suspect is in

p

custody when he is being questioned"

For the above reason, Miranda

warnings were required to be given to

the Petitioner before his interrogat-

ion, and only some of those warinins

were actually given. Thus, the

Petetioner's Constitutional rights as

guaranteed by the Fifth and Sixth Amend-

ments to the United States Constitution,

and this Court's holding in Miranda,

supra, were breached in the investigat-

ion of the Petitioner.

16

RULE (19 B)

E. The charges are unreal the

Petitioner stoll nothing from

Rogers or Hernandez. The Petetioner

processed W-2 forms that was sold

to him by person 'believed to be the

rightful owners

The Petitioner is one of many dis-

discounters including the largest in the

world - IRS, Master Charge Visa, American

Express ect. That have unknowingly pro-

cessed stolen or conterfiet instruments

and the one that's quilty is seldom

caught. Hundreds of millions are lost

yearly.

A jury is the same as a computer.

Dumb to all the facts of a case. All data

is fed into to the computer. After they

are programmed. It is the duty of the

Court or operator to key the computer or

jury on how to computer the program fed

to them.

The court failed to give directions

to the Jury if forgery was involved to

choose the party unknown or the petitioner.

It was clearly proved that the petitioner

had no means to get the W-2 form to pro-

cess but through Hernandez or Rogers of

some one close to them that had access to

their mail.

The petitioner all so operated a service

station and had extensive dealing with

discount instruments. He processed

17

thousands of government "credit cards",

Visa, Master charge, all types of gas

cards.

The card was honored not the person.

The Petitioner saw thousand of travelers

once in a life time and could not identify

a single one six or eight months later, or

even a day. A few stolen and revoked cards

was received by the Petetioner but never was

he as an agent of the company alerted or

prosecutef for the forgery of a unknown.

Now why change and find the Petitioner

of some unknown person gain?

The Petitioner pleads with the Supreme

Court to rule him right or rule the government

and all other discounters wrong for process-

ing instrument assumed right.

18

EXPENMENT

Give one of your credit cards to

one of your friends or your butler or

yard boy. Send him to 5 or more places

to buy with that card. Observe that the

clerks don't look at the man they look

only at. the card. Come back 24 hours

later and ask for a description of the

one that used ‘he card for the past

experience, not one could give a descrip-

tion of the party, then decide who should

get prosecuted.

Violation in the act of Congress(1974)

He deceived the Petetioner stating that

he was investigating aliens therefore

violating the act of Congress.

CONCLUSION

For these reasons, a Writ of

Certiorari should issue to review the

judgement and opinion of the Court of

Appeals for the Tenth Circuit.

Respectfully submitted,

SETH O. SPARKS

P. O. Box 1564

Hobbs, N.M. 88240

PRO SE

19

NOT FOR ROUTINE PUBLICATION

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VS. No. 78-1631

SETH O. SPARKS,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. Crim. No. 78-95)

Charles F. Sandoval (R.E. Thompson, United

States Attorney, with him on the brief)

for Plaintiff-Appellee.

Michael Danoff for Defendant-Appellant.

Bebore MCWILLIAMS, BREITENSTEIN and LOGAN,

Circuit Judges.

20

BREITENSTEIN, Circuit Judge.

After a jury trial, defendant-appellant

was found guilty of forgery of a United

States Treasury check, 18 U.S.C. §495,

theft of government property, 18 U.S.C.

§641, and presentation of a false claim,

18 U.S.C. § 287. On this appeal he

attacts the jury selection, refusal to

supress statements by him to an IRS

agent, admission of handwriting examplers,

and the sufficiency of the evidence.

We affirm.

Defendant was a tax return preparer

who both prepared federal income tax

returns and purchased at a discount the

right to tax refunds. He carried on these

activities in Hobbs, New Mexico. Three

counts on which defendant was convicted >

related to Margaret Rogers. Rogers' W-2

Form was mailed by her employer to her

Hobbs address. She had moved to Gée'lup,

New Mexico, and did not receive it. At

her request a new W-2 form was sent to

her in Gallup. A tax consultant there

prepared a return for her which she

filed. She testified that she had never

met defendant, and had not authorized him

to sign a return for her or to receive

her refund.

The other count related to Roberto

Hernandez and presented facts similar to

those pertaining to Rogers. Hernandez

did not receive his W-2 form and his re-

turn was prepared by another consultant.

He stated that he did not know defendant

and had not authorized defendant to

21

to prepare a return for him.

Defendant says that the voir dire

examination did not protect his rights

adequately because of the failure of the

court to ask requested questions relating

to race. Defendant is black. The record

does not clearly show the race of Rogers

or Hernandez. Defendant did not object

to the voir dire, and it may be that his

claims come too late. See United States

v. Vecchiarello, D. C. Cir., 536 F.2d

420, 423. In the circumstances presented,

we consider the issue on its merits.

In Ristaino v. Ross, 424 U. S. 589,

596-598, the Court held that absent

circumstances similar to those in Ham v.

South Carolina, 409 U.S. 524, examination

of prospective jurors with regard to

racial prejudice is not constitutionally

required. Defendant relies on a footnote

in Ristaino, Id. at 597, N. 9, which

comments on a nonconstitutional duty to

propound. appropriate questions relating

to racial prejudice. In United States v.

Polk, 10 Cor., 550 F.2d 1265, 1267, cert.

denied 434 U.S. 838, we recognize Ristaino

footnote 9 and pointed out that Ristaino

involved a black defendant charged with

a violent crime against a white man, where-

as Polk was concerned with a nonviolent

crime have no racial overtones. The same

is true and the instant case. Viewed in

its entirety the voir dire was fair to

the defendant and well within the sound

discretion of the trial court. Id. at

1267. Defendant's claim has no merit.

Over a six-month period an IRS Agent

interviewed defendant several times.

Defendant argues that statements made

by him to the agent should have been

22

On his first visit the agent gave the

defendant a noncustodial Miranda warning.

This type of warning omits the advise

that the person interrogated has the right

to appointed counsel. Defendant relies

on United States v. Dickerson, 7 Cir.,

431 F.2d 1111, but that the case was --

specifically overruled by United States

v. Fitzgerald, 7 Cir., 545 F. 2d 578,

581, because of the decision in Beckwith

v. United States, 425 U.S. 341, 347,

approving a noncustodial interrogation.

See also United States v. Lewis, 6 Cir.,

556 F.2d 446, 448-449, cert. denied 434

U.S. 863. Although defendant says that

the agent told him that he was not in

custody. He was not handcuffed ant at

least four interviews took place over the

six-month period with the defendant and

the agent making at least one trip in

seperate cars.

Defendant argues that the agent obtained

statements and documents by guile and

deceit. We have recognized that Fourth

Amendment protections can be violated “by

guile as well as by force." United States

v. Oakes, 10 Cir., 564 F.2d 384, 386, cert.

denied 435 U.S. 926. Defendant testified

that the agent told him that he, the agent

was investigating "illegal aliens." The

agent testified that he told defendant

that he was investigating possible criminal

violations of the tax laws. Defendant did

not deny this statement of the agent. The

record fails to show affirmative misrepre-

sentations by the agent. See United States

v. Prudden, 5 Cir., 424 F.2d 1021, 1033,

cert. denied 400 U.S. 831. Defendant's

23

statements were made, and the documents

surrendered, voluntarily and without

duress and coercion. They were properly

received. Schneckloth v. Bustamonte, 412

U.S. 218, 248-249. See also United States

v. Shields, 10 Cir., 573 F.2d 18, 22-23.

Defendant urges the court erred in

requiring him to furnish handwriting

exemplars. The decision are against him.

Gilbert v. California, 388 U.S. 263, 266-

267, holds that the furnishing of such

an exemplar does not violate the Fifth

Amendment privilege against self-

incrimination, and United States v. Mara,

410 U.S. 19, 21-22, holds that such

action does not violate the Fourth Amendment

We followed Mara in United States v.

Blakney, 10 Cir., 581 F.2d 1389, 1390.

Defendant emphashzes the dissent of Justice

Marshall in Mara, 410 U.S. at 3l, and asks

us to reconsider Blakney. We decline to do

so. The court properly required defendant

to furnish the handwriting exemplars.

At the conclusion of the government's

case defendant moved to dismiss the in-

dicment because of the lack of proof of

the required specific intent. We consider

the motion as one for the judgement of

acquittal. After the court denied the

motion, the defense presented evidence in-

cluding the testimony of the defendant. The

government contends that the defense failure

to renew the motion at the close of all

evidence amounts to a waiver and precludes

consideration of evidence sufficiency at

this time. In United States v. Lopez,

10 Cir., 576 F.2d 840, 842-843, we re-

cognized the waiver or preclusion rule and

noted that it had been criticized and

attacked. No necessity for consideration

of the rule exists in the case at bar

beacuse we are convinced that substantial

24

OE

evidence sustains the verdict. An appllate

court does not weigh conflicting evidence

Or pass on the credibility of witness.

United States v. Waltson, 10 Cir., 552 F.2d

1354, 1366, cert. denied 431 U.S. 959. We

review the evidence in the light most favor-

able to the government to ascertain whether

the evidence, with reasonable inferences

therefrom, suffices to sustain the verdict.

United States v. McMahon, 10 Cir., 562 F.2d

L1i9z, 1295.

Rogers testified that she had never met

defendant, that her tax return was prepared

by another, and that she did not authorize

defendant to sign her refund check.

Hernandez testified that another person

prepared his return, that he gave no one

permission to sign his return, and that he

did not sell his W-2 form to defendant.

Other evidence connected defendant with the

returns. Defendant's testimony was con-

trary to the government's evidence. The

decisive question on the counts relating to

Rogers and Hernandez was credibility and

the jury resolved that question against

defendant. The evidence suffices to

sustain the verdict.

Affirmed.

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