# Opposition Brief — Monteleone v. Municipal Court

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 822

## Text

No. 92-1940

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

ANTHONY S. MONTELEONE, et al.
Petitioner,

V.
MUNICIPAL COURT OF CALIFORNIA,
COUNTY OF SOLANO JUDICIAL DIST., et al.,
Respondent.

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF OF RESPONDENT STATE OF CALIFORNIA
IN OPPOSITION TO PETITION FOR
WRIT OF CERTIORARI

DANIEL E. LUNGREN

Attorney General

GEORGE WILLIAMSON

Chief Assistamt Attorney General

RONALD A. BASS

Senior Assistant Attorney General

ANN K. JENSEN

Supervising De:puty Attorney General

[Attorney of Record]

ENID A. CAMPS

Deputy Attormey General
455 Golden Gate Ave., Suite 6200
San Francisco, California 94102
Telephone: (415) 703-1591

Attorneys for Respondents

. ieee

ISSUE PRESENTED

Whether the court can dismiss a habeas petition as
moot where petitioners served substantial jail time by
rejecting probation and did not demonstrate collateral
consequences from their misdemeanor convictions for
failure to file tax returns?

i

TABLE OF CONTENTS

OPINIONS BELOW
JURISDICTION

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

STATEMENT OF THE CASE AND OF FACTS
REASONS FOR DENYING THE WRIT

I. This Case Is Not Deserving Of
Plenary Consideration By The Court

II. Federal Habeas Review Is Unwarranted
Because Petitioners Have Not Demonstrated
That Their Misdemeanor Tax Convictions
Have A Material Effect On Present Legal
Rights

CONCLUSION

15

15

17

29

rH

TABLE OF AUTHORITIES

Cases:

Aaron v. Pepperas
790 F.2d 1360 (9th Cir. 1986)

Arnold v. Panora
593 F.2d 161 (1st Cir. 1979)

Bjerkan v. U.S.
529 F.2d 125 (7th Cir. 1975)

Boyer v. City of Orlando
402 F.2d 966 (Sth Cir. 1968)

Broughton v. North Carolina
717 F.2d 147 (4th Cir. 1983)
cert. denied 466 U.S. 940 (1984)

Cancino v. Craven
511 F.2d 1371 (9th Cir. 1975)
cert. denied 423 U.S. 875 (1975)

Carafas v. LaVallee
391 U.S. 234 (1968)

Conway v. Adult Authority
396 U.S.107 (1969)

Cox v. McCarthy
829 F.2d 800 (9th Cir. 1987)

21

27

17, 27

24

20

Engle v. Isaac
456 U.S. 107 (1982)

Lane v. Williams
455 U.S. 624 (1982)

Liner v. Jafco, Inc.
375 U.S. 301 (1964)

Malloy v. Purvis
681 F.2d 736 (11th Cir. 1982) -

Naylor v. Superior Court of Arizona
558 F.2d 1363 (9th Cir. 1977)
cert. denied 435 U.S. 946 (1978)

North Carolina v. Rice
404 U.S. 244 (1971)

Parker v. Ellis
362 U.S. 574 (1960)

Pennsylvania v. Mimms
434 U.S. 106 (1977)

People v. Wheeler
4 Cal.4th 284 (1992)

Reimers v. State of Oregon
863 F.2d 630 (9th Cir. 1988)

Robbins v. Christianson
904 F.2d 492 (9th Cir. 1990)

Sibron v. New York
392 U.S. 40 (1968)

17

18, 21, 25, 27

17

24, 27

18, 21

17, 18, 26

17

26

25, 26

25

27

26

U.S. v. Sultani
704 F.2d 132 (4th Cir. 1983)

Statutes:

California Penal Code
§ 170.6

California Revenue & Taxation Code
§ 19401(a)
§ 19406
§ 19407

United States Code
Title 28, § 1254(1)
Title 28, § 2253
Title 28, § 2254

Court Rules:

Federal Rules of Appellate Procedure
Rule 22(b)

Other Authorities:

13A C. Wright, A. Miller & E. Cooper
Federal Practice and Procedure
§ 3533.4 (2d ed. 1984)

Comment, Civil Disabilities of Felons
53 Va.L.Rev. 403 (1967)

27

20

24

eect

Vv

Crowe, Tax Protest Prison Term Ends for Duo
Fairfield Daily Republic, Nov. 27, 1991

Department of Transportation Federal
Aviation Administration’s

Conduct and Discipline manual,
Chapter 3

Notes, The Mootness Doctrine in the
Supreme Court 88 Harv. L. Rev. 373 (1974)

United States Office of Government Ethics
Standards of Ethical Conduct For Employees
of the Executive Branch, Part I,

Executive Order 12674 and

5 C.F.R. Part 2635, publ. at

57 Fed.Reg. 35006-35067

(Aug. 7, 1992)

15

3, 22

17

a, 2

No. 92-1940

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

ANTHONY S. MONTELEONE and
MARY ANN CUMMINS-MONTELEONE
Petitioners,

Vv.

MUNICIPAL COURT OF CALIFORNIA, COUNTY OF SOLANO
NORTHERN SOLANO JUDICIAL DISTRICT, et al.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF OF RESPONDENT STATE OF CALIFORNIA
IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

Petitioners seek review of an unpublished Ninth
Circuit Court of Appeals Memorandum filed on December
8, 1992, which dismissed for mootness their consolidated
appeals from a district court’s denial of their 28 U.S.C.
section 2254 habeas petitions. App. A, Consolidated
cases: Mary Ann Cummins Monteleone v. Municipal Court,
et.al., Case No. 91-16725, D.C. No. CV-90-01448-LKK;

2

Anthony S. Monteleone v.Municipal Court, et. al., Case No.
91-16804, D.C. No. CV-90-01447-LKK.

The United States District Court for the Eastern
District of California had denied petitioners’ separate
habeas petitions on the merits in unpublished opinions on
October 15, 1991, after adopting extensive findings by the
U.S. Magistrate filed on August 29, 1991, and August 30,
1991. App. B.

Petitioners’ jury convictions stemming from state tax
code violations previously had been affirmed on August
20, 1990, in unpublished written opinions by the State of
California, Solano County Appellate Department, which
found that petitioners had "attempted to abuse the judicial
system," that the "record does not reveal any error of law,"
and that the trial judge gave petitioners “the opportunity
to mitigate [their] punishment, but [they] failed to do so."
App. C People v. Mary Ann Cummins-Monteleone, No.
FC28088; People v. Anthony Monteleone, No. FC28087.

JURISDICTION

Petitioner invokes this Court’s jurisdiction under 28
US.C § 1254(1).

On March 4, 1993, the Ninth Circuit Court of
Appeals denied petitioners’ petitions for rehearing and
"suggestion for rehearing en banc" of the Court’s
December 8, 1992, Memorandum.

Whether the case is moot following petitioners’
release from custody is at issue in this case.

ee

3

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

Petitioners rely upon the following Statutes and
Rules: Title 28, U.S. Code Sections 2253 and 2254;
Federal Rules of Appellate Procedure, Rule 22(b).

Respondent also relies upon the following federal
executive and administrative agency orders and California
statutes: (1) United States Office of Government Ethics
Standards of Ethical Conduct For Employees of the
Executive Branch, Part 1, Executive Order 12674 and 5
CFR. Part 2635 (August 1992). App. F; (2) Department
of Transportation Federal Aviation Administration’s
Conduct and Discipline manual, Chapter 3. App. F; (3)
Cal.Rev. & Tax Code, §§ 19401, 19406. App. E.

STATEMENT OF THE CASE AND OF FACTS

On October 19, 1988, the Solano County District
Attorney filed complaint number F84281CR and
F84282CR charging petitioners Mary Ann Cummins-
Monteleone (M. Monteleone) and Anthony S. Monteleone
(A. Monteleone), (collectively, “petitioners") with six
misdemeanor counts as follows: (1) Willful and unlawful
failure to file an income tax return from 1985-1987.
(Count I-III, Cal. Rev. & Tax Code, § 19406); (2) Failure
to file an income tax return and supply information
required by the Revenue and Taxation Code from 1985-
1987. (Count IV-VI, Cal. Rev. & Tax Code, § 19401(a)).
See, CR 18-24, Respondent’s Appendix of Exhibits in Support
_ of Answer in Opposition to Petitions for Writ of Habeas

TE

4

orpus, at Exhs. 1 and 2+/

On or about March 14, 1989, petitioners received
from the court, a copy of the complaint. Exh. 1 and 2.
Petitioner, A. Monteleone, initially appeared for
arraignment on April 6, 1989, at which time he was
advised as to the charges pending against him. Exh. 1, p.
1; Exh.3, RT 4/6/89, p. 1. Petitioner represented that he
had money to hire his own attorney and requested a
continuance to seek counsel. Exh. 1, p. 1; Exh. 3, RT
4/6/89, p. 1.

Between April 6, 1989, on August 14, 1989, the
court granted petitioner numerous continuances for the
express purpose of retaining counsel upon petitioner’s
assurances that he had sufficient funds for this purpose.
Exh. 1; Exh. 3. Specifically, the record reflects that the
court granted petitioner continuances on the following
dates: (1) April 6, 1989; (2) May 11, 1989; (3) June 1,
1989; (4) June 21, 1989; and (5) July 24, 1989. Exh. 1;
Exh. 3, RT 4/6/89, pp. 1-2; RT 5/11/89, p. 1; RT 6/1/89, p.
1; RT 6/21/89, p. 1.

On August 14, 1989, A. Monteleone appeared
without counsel for the sixth consecutive time since April
6, 1989-—Exh. 1; Exh. 3. Over petitioner A. Monteleone’s
objection, the court entered not guilty pleas to the charges
in the complaint. Exh. 1, p. 2.

Similarly, the court continued the M. Monteleone
case seven times for counsel] and plea. Exh. 2; Exh. 3,

1. Unless otherwise noted, all references are to exhibits which
are found in Respondents’ Appendix tc Answers, Exhs.1-11 listed
in the Court of Appeals docket sheet as CR 18-21 in the A.
Monteleone case and CR 21-24 in the M. Monteleone case.

5

RT 8/29/89, pp. 11-18; Exh. 3, RT 4/4/89, p. 1.

On August 29, 1989, petitioner M. Monteleone,
appeared again in court without counsel. Exh. 2; Exh. 3,
RT 8/29/89, pp. 11-18; Exh. 3, RT 9/20/89 p. 31.

The court then entered a plea of not guilty on
petitioner M. Monteleone’s behalf. Exh. 3, RT 8/29/89, p.
14.

The court set trial for September 19, 1989, with
petitioner’s "co-defendant [A. Monteleone], who’s also
been engaged in the same type of conduct, attempting to
delay the process of the Court." Exh. 3, RT 8/29/89, p.
14.

On September 19, 1989, petitioners appeared in
court without counsel. Exh. 1, p. 4; Exh. 3, RT 9/19/89,
pp. 1, 4. The court, Judge Udall was disqualified pursuant
petitioners’ California Penal Code section 170.6 motion.
Exh. 3, RT 9/19/89, p. 3.

The trial commenced on September 20, 1989. Exh.
3, RT 9/20/89 p. 39. Petitioners were given a copy of the
jury instructions, but refused to look at them. Exh. 3, RT
9/20/89 (In Chambers) pp. 1-7.

Neither petitioner M. Monteleone nor Petitioner A.
Monteleone were represented by counsel at trial. Exh. 1,
pp. 4-6; Exh. 2, pp. 5-7.

Prior to trial, the court denied petitioner M.
Monteleone’s motion to continue the trial, finding that
petitioner "had adequate time to obtain counsel and
prepare for trial.". CR 21-24, Exh. 2, p. 5.

Petitioner A. Monteleone had refused to "sign [the]
financial declaration [to obtain appointed counsel] under
penalty of perjury." Exh. 1, p. 4. Accordingly, the court
would "not appoint counsel." Exh. 1, p. 4; Exh. 3, RT

9/20/89, pp. 6-23.

In response to petitioner’s request for appointment
of counsel and for a continuance, the court stated as
follows:

"The matters were both put over

seven times for you to hire attorneys... .

It’s obvious to the Court that what you were

doing was, basically, delaying the Court

process by indicating you were mailing letters

to attorneys. But in any event, it was the

Court’s feeling you did not intend to retain

counsel; obvious you were doing nothing

more than dealing with dilatory obstruction

of process to delay this matter in court. I

put this matter over for jury trial during the

last court appearance. You've had until

today to retain counsel." Exh. 3, RT 9/20/89

p. 3.

Prior to trial, the court also denied petitioners’
Marsden motion on the ground he could not "discharge an
attorney you don’t have." Exh. 3, RT 9/20/89 p. 36. The
court observed, "Maybe that was . . .the next step after
you hired a lawyer. Maybe you filed that prematurely."
Exh. 3, RT 9/20/89 p. 36.

On September 20, 1989, a jury found petitioners
guilty on all counts alleged in the complaint. Exh. 1, pp.
5-6; CR 21-24, Exh. 2, p. 7.

At trial, Petitioner M. Monteleone professed to
have such knowledge of the judicial system that she could
tell the court what the district attorney was required to
file, but also professed to have no understanding of the
proceedings against her. CR 21-24. Exh. 3, RT 9/20/89

pp. 24-25, passim.

Evidence at trial and the related hearings showed
that petitioner A. Monteleone had recently retired from
the military and was previously employed at Mare Island.
Exh. 3; Exh. 3, RT 10/27/89 p. 70. Petitioner M.
Monteleone was employed with the F.A.A. as an Air
Traffic assistant. Petitioner M. Monteleone was a
member of "The Free Enterprise Society in Fresno," and
petitioners had not filed a tax return since 1982. Exh. 3,
RT 10/27/89 p. 71, RT 8/29/89, pp. 11-18, RT 9/20/89 p.
31.

After trial, petitioners appeared without counsel for
sentencing. Exh. 3, RT 9/20/89 p. 43. The district attorney
requested that petitioners receive the "maximum time" for
their offenses. Exh. 3, RT 9/20/89 p. 43. The court
informed petitioners that it was "willing [to] . . . put the
sentencing matter over so [they could] file [their] income
tax returns." Exh. 3, RT 9/20/89 p. 45.

On October 3, 1989, petitioners appeared in court
for sentencing without counsel. Exh. 3, RT 10/03/89 pp.
52-58. Petitioners, again, requested additional time, and
waived time for sentencing. Exh. 3, RT 10/03/89 pp. 55-
56.

Petitioner M. Monteleone said she had money only
to pay her attorney to handle the "new trial." Exh. 3, RT
10/03/89 pp. 54-55. ‘Petitioner said her attorney, Mr.
Fallman would be available on October 27, 1989, and the
court continued the case to that date. Exh. 3, RT
10/03/89 p. 58.

On October 27, 1989, petitioners appeared in court
for sentencing without counsel representing them directly.
Exh. 3, RT 10/27/89 p. 59. Petitioner M. Monteleone told

8

the court that her attorney, Mr. Fallman was "in the
courtroom today," and would be retained if the court
granted a new trial. Exh. 3, RT 10/27/89 p. 59.

The court noted for the record, all of the reasons
that it would not grant the motion for a new trial, citing
again, petitioners’ dilatory tactics. Exh. 3, RT 10/27/89 pp.
60-67.

On October 27, 1989, prior to sentencing, the court
addressed petitioners and observed as follows.

"(1] The Court: All right. Appears there’s no
legal cause why judgment and sentence should not be
imposed.... [{] Ill suspend imposition of judgment
and sentence. I'll place you on probation for a three-
year period under the supervision of the Solano County
Probation Department. It will be formal probation. [1]
As I indicated to you before, I don’t understand.
Normally, the people I get in here on tax-protest type
cases are those people where they’re either undereducated
or don’t understand the system. Both of you appear to
be quite intelligent. [{] I don’t know what caused you to
buy into this idea you think you’re going to be able to get
Out without paying taxes like everybody else does. [fl]
Most of the people I have here on tax cases like this do
not work for the government. [f! I mean, Mrs.
Monteleone, you work for the FAA, I think you said, as
an Assistant Air Traffic Controller; so, all your income
comes from the government. ... Mr. Monteleone is
retired military, so, his whole -- his money comes directly
from the government, all comes from the taxpayers. [1]
He was previously employed at Mare Island, all tax
money. You’ve been on the public dole for as long as I

9

can see. [{] So, I’ve never had those kind of people.
People who protest taxes don’t normally work for the
government... All your income is derived through
public monies. . . . I mean, we all would have a lot more
money if we didn’t pay our taxes. That’s the bottom line.
[1] You have not filed a return since 1982, it appears. I
think the taxes you owed were $180,000. I can’t recall the
exact amount. [1] You’ve never been underemployed or
underprivileged, it looks to me, and you’ve had good
incomes, just failed to pay your taxes, and it seems like
the Franchise Tax Board has been very patient with you.
[1] I can’t believe, since 1982, it just gets to trial in 1989.
They’ve given you ample opportunity, contacted you by
person and by mail, and you continue to assert these
ridiculous constitutional arguments that no Court in the
land has ever accepted, and will never accept, I assure
you. [1] Any lawyer will probably tell you that who you
discussed the matter with. [1] The Federal Courts have
been coming down on tax protesters. One of the leaders
of the tax protest movement a couple years ago got
something like 50 years, or something. [{l] I don’t want
to put you people in jail, but you seem to just try to make
a mockery of the system, not only by not paying your
taxes but by manipulating the system. {{] I have given
yeu every opportunity to retain counsel... ." Exh. 3, RT
10/27/89 pp. 59-79.

The court then offered petitioners the following
sentence: One year in county jail on each count, with all
but 30 days in county jail suspended on each count, and
with a $1000 fine on each count if income tax returns are
filed within 15 days; payment of $1,456.76 for case

10

investigations costs; and payment of back taxes due. Exh.
1; Exh. 2; Exh. 3, RT 10/27/89 pp. 72-73. "Which would
mean, said the court, "if you file your income tax returns,
in accordance with your probation, within 15 days of
today’s date, that instead of doing three years, you will do
90 days. . . . [and pay] $3000 as opposed to $30,000," in
fines. Exh. 1; Exh. 2; Exh. 3, RT 10/27/89 p. 72.

Petitioners rejected the court’s terms of probation.
Exh. 1; Exh. 2; Exh. 3, RT 10/27/89 pp. 72-76. Prior to
rejecting the terms of probation, petitioner M. Monteleone
conferred with her counsel, Mr. Fallman. Exh. 3, RT
10/27/89 pp. 74-75.

On October 27, 1989, the court sentenced
petitioners as follows: One year each on Counts I, II, and
III, for a total of three years in County Jail, each; $20,000
fine on each count, for a total fine of $60,000, each; and
a $1,456.76 restitution fee. Exh. 1; Exh. 2; Exh. 3, RT
10/27/89 p. 78. Petitioners apparently were not remanded
into custody. Exh. 3, RT 10/27/89 pp. 77-79.

On November 1, 1989, petitioners filed notice of
appeal and application for release on their own
recognizance pending disposition of appeal. Exh. 1, p.
8.

On June 4, 1990, petitioners filed appeals in Case
Nos. FC28087 and FC28088 in the Superior Court of
Solano County. Exh. 8, Appellant’s Opening Brief; Exh.
10, Opinion on Appeal. Petitioners were represented by
appointed counsel] during the appeal, after they signed
under penalty of perjury a "Financial Statement on
Eligibility For Appointment of Counsel and
Reimbursement." Exh. 7.

On August 20, 1990, the Solano Superior Court,

11

Appellate Department, denied petitioners’ appeals. Exh.
10, Opinion on Appeal.

On September 5, 1990, the Solano County Superior
Court, Appellate Department denied petitioners’ petition
for rehearing and application for certification of the case
to the California Court of Appeal. Exh. 10, Order
Denying Petition for Rehearing and Denying Application
for Certification; Exhs. 8 and 9.

While still released on their own recognizance,
petitioners filed a Petition for Writ of Habeas Corpus in
the California Supreme Court on or about September 25,
1990, in Case Nos. S017634 and S017639. Exh.12; Exh.11.

On October 25, 1990, the California Supreme
Court denied the petitions. CR 1, Pet.Exh.I; CR 21-24,
Pet.Exh.I. |

Also on October 25, 1990, execution of petitioners’
three-year sentence in County Jail apparently commenced.
Exh. 1, p. 11; CR 1, A. Mont.Pet.,p. 2, 95; CR 21-24, Exh.
2, p. 12; CR 2, M. Mont. Pet., p. 2, 95.

On November 21, 1990, petitioners filed their
petitions for writ of habeas corpus with the United States
District Court. CR 1, 2. The petitioners challenged their
convictions and sentence alleging deprivation of the right
to counsel, failure to meet venue and vicinage
requirements, and improper arraignment. As relief they
requested their "immediate release . .. from present
custody" or for their custodians to "show cause why the
petitioner[s] should remain confined and deprived of
[their] liberty." CR 1,2.

On or about July 8, 1991, petitioners applied for
"bail pending determination of petition for writ of habeas

|

12

corpus." CR 25 (A. Mont.); CR 28 (M. Mont.). In her
petition M. Monteleone stated that she “was on bail
without incident during trial and for 13 months following
trial;" that "[b]ecause of [her] incarceration [she had] been
removed from [her] position as an Air Traffic Control
Assistant," and that "[u]pen [her] release [she] intend[s] to
immediately move for reinstatement." CR 28, pp. 1-3.
The district court denied the bail petitions on August 26,
1991. CR 26 (A. Mont.); CR 30 (M. Mont.).

On August 29 and August 30, 1991, the Magistrate
filed his Findings and Recommendations in the case. See,
App. B.

With respect to the deprivation of counsel claim,
the Magistrate found that petitioners’ habeas petitions
were "completely lacking in merit on this ground," that the
"case was no rush to justice," and that the Court had
"never witnessed judicial patience of the sort exhibited by
the Solano County bench." App.B; CR 28, pp. 2-14.

Likewise, the Magistrate found "without merit"
petitioner’s claim that his "First Amendment" rights were
violated because the court improperly "demand[ed].. .
that he perform an act contrary to his religious belief
... and take an oath" in filling out the financial statement
required for appointed counsel. Pet. pp. 16-17, 21-22.
The Magistrate found the trial court, did not err in
refusing to appoint counsel, and that the judge reasonably
attempted to utilize the least restrictive means possible to
have petitioners’ attest to their financial status as required
for appointed counsel. As the Magistrate observed,
petitioners "were simply not willing to perform any task
that might get them counsel and get the trial started," and
"petitioner herein signed his petition to this court under

—SSSSSSLa_xes—=-aQjY aS

13

penalty of perjury without any problem being raised in
this action." CR 28 (A. Mont.), pp. 9-14.

The Magistrate further found meritless petitioners’
contentions that their convictions were in violation of the
Sixth Amendment vicinage requirements. App. B. The
Magistrate observed that it "is clear that California law
allows for the prosecution of failure to file tax offenses in
the county of residence. Cal. Rev. & Tax. Code § 19407,"
and that it was only petitioner who presumed that tax
actions could only be prosecuted in Sacramento where tax
returns are processed. “Petitioner’s contention would
produce an absurd result," the Magistrate recognized. CR
28 (A. Mont.) pp. 14-15.

Finally, the Magistrate likewise rejected, based on
the evidence, petitioners’ claims that they were improperly
arraigned. App. B.

On or about September 30, 1991, petitioners each
filed in the Ninth Circuit a "Petition for Application for a
Writ of Mandamus for an Order Commanding Release of
Petitioner on Bail Pending Determination of Petition for
Writ of Habeas Corpus." |

In the petitions, petitioners repeatedly emphasized
that "if [they are] not released pending the determination
of [their] Writ of Habeas Corpus [their] Petition{s] will
become moot upon serving out [their] sentence(s]." Pets.
§ 10, p. 3; M. Monteleone Pet. p. 8, 7 25, 1 26; A.
Monteleone Pet., p. 7, 1 24, 9 25.

On October 15, 1991, the District Court denied the
petitions and adopted the Magistrate’s extensive findings
issued on August 29 and 30, 1991. CR 2m. 2a Se
Petitioners appealed on October 24, 1991. CR 36.

On or about February 18, 1992, petitioners filed

14

their opening briefs in the Ninth Circuit Court of Appeals.

In his Court of Appeals Opening Brief, petitioner
A. Monteleone stated that he “has served his jail sentence
and was released from custody on October 17, 1991." Pet.
Court of Appeal Open. Brief, p. 5. In her Court of
Appeals Opening Brief petitioner M. Monteleone stated
she "has served her jail sentence and was released from
custody on November 26, 1991." Pet. Court of Appeal
Open. Brief, p. 5.

On December 8, 1992, the Court of Appeals
dismissed petitioners appeal "as moot." On or about
January 21, 1993, petitioners timely filed a "petition for
rehearing and suggestion for rehearing en banc." In the
rehearing petition, petitioners contended that their appeals
were not moot, and set forth the reasons they believed
their convictions had collateral consequences. They also
asked the Court to allow for further briefing on the issues.

On March 4, 1993, the Ninth Circuit Court of
Appeals denied petitioners’ petitions for rehearing and
"suggestion for rehearing en banc" of the Court’s
December 8, 1992 Memorandum.

On July 15, 1993, after a hearing, the Solano
County Municipal Court granted petitioners credit for time
served against their $60,000 fines. App. D. However, the
Court did not waive their $1,456.76 restitution fees to the
Franchise Tax Board as compensation for their
investigatory expenses, and informed petitioners that they
were still obligated to pay such restitution fees by June 15,
1994. App. D.

15

REASONS FOR DENYING THE WRIT

i This Case Is Not Deserving Of Plenary
Consideration By The Court

This case is not deserving of plenary consideration
by the Court. The case involves unique factual
circumstances, and an unusual and tangled procedural
history not susceptible to repetition. See App. B, D; Exhs.
1-11. The case does not seek to resolve legal questions of
general importance transcending the litigant’s narrow
interests. Petitioners with the apparent assistance of the
tax protest group the "Free Enterprise Society" are
involved in extensive self-generated litigation, designed at
delaying and abusing court processes to their own benefit.
See, CR e.g., 18-21, Exh. 4-7; App. B and C; Crowe, Tax
Protest Prison Term Ends for Duo, Fairfield Daily Republic,
Nov. 27, 1991; see also Respondent’s Court of Appeal
briefs.2/

2. Members of the "Free Enterprise Society," apparently
believe that taxes are unconstitutional because the Sixteenth
Amendment was never properiy ratified.

Petitioner A. Monteleone in his "Supplement Number 2 To
Motion To Dismiss" filed prior to trial in Solano Municipal Court
on September 5, 1989 states that "Defendant herein has challenged
the validity of the, so-called, legal tender laws on the basis of a
fraudulent Certification of ratification of the Sixteenth Amendment
to the United States Constitution." CR 19, Exh. 4. Likewise, in
response to the State Franchise Tax Board’s letter for taxes due in
tax years 1983-1986, petitioners informed FTB in part as follows:
"It has come to our attention that the non-apportioned income tax
is a voluntary tax and congress’s original intent and letter of all
revenue laws made in pursuant to the passage of the Sixteenth
Amendment was a proposed tax measured by the net profit and
gain derived from the source and not on the capitol or other

16

Petitioners who successfully delayed their trials for
months could have accepted the leniency of probation
after their misdemeanor convictions, but instead elected
substantial jail time and fines. Subsequently, petitioners
were in custody and able to seek collateral federal habeas
review only because they forestalled serving their jail
sentences for about one year while they exhausted state
court appellate remedies. See, CR 28.

Although it is not part of the record below, the
State further notes that on July 15, 1993--after petitioners
were released from custody--they requested and were
granted a waiver of their $60,000 fines as credit for time
served. App. D. The Municipal Court did not likewise
waive the $1,456.76 in restitution fees to the Franchise
Tax Board, but extended the time for payment to June 15,
1994. App. D.

Finally, in any event, the courts below which fully
considered the substance of petitioners’ appeals found
petitioners’ claims meritless, and further review of their
arguments is unwarranted. See, App. B and C.

Accordingly, this fact-specific case with negligible
implications is not certworthy.

property (source). { We have recently received conclusive and
irrefutable certified documents pertaining to this from the National
Archives in Washington D.C." CR 21, Exhs. 6-7.

In response, the Franchise Tax Board sent petitioners a
letter which stated in part as follows:

"The Franchise Tax Board will not respond to
correspondence objecting to state taxes on constitutional, religious
or moral grounds. The reason for this is that hundreds of Board
of Equalization and state and federal court decisions have been
reached on such issues finding the arguments and objections to be
frivolous and lacking in merit." CR 21, Exh. 6.

Il. Federal Habeas Review Is Unwarranted
Because Petitioners Have Not Demonstrated
That Their Misdemeanor Tax Convictions
Have A Material Effect On Present Legal

Rights

Review also is unnecessary because petitioners have
not met all threshold requirements for federal habeas
corpus review of final state court judgments.

The 28 U.S.C. § 2254 statutory requirement of
custody is satisfied as long as the petitioner is in custody
of the state when the petition for writ of habeas corpus is
filed, and release thereafter does not divest the court of
its statutory jurisdiction. Carafas v. LaVallee, 391 US.
234, 238, 242-243 (1968) overruling Parker v. Ellis, 362 U.S.
574 (1960); Engle v. Isaac, 456 U.S. 107, 113-115, n. | Ae
(1982).

Mootness, however, is a distinct requirement for
federal review. The Court’s "impotence ’to review moot
cases derives from the requirement of Article III of the
Constitution under which the exercise of judicial power
depends upon the existence of a case or controversy.”
North Carolina v. Rice, 404 U.S. 244, 246 (1971) citing
Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3 (1964).

It is recognized that the "application of Article IT
to particular cases [is] often dependent upon subtle
nuances in the Court’s interpretation of the facts .. . [and
that in] mootness inquiries ... the range of factual
questions which must be considered is greater than in
other justiciability cases." Notes, The Mootness Doctrine in
the Supreme Court, 88 Harv. L. Rev. 373, 377-378 (1974).

18

"(T]he principal focus in determining whether a
case is moot is upon the existence or non-existence of any
‘collateral consequences’ that remain from the conviction."
Naylor v. Superior Court of Arizona, 558 F.2d 1363, 1365-
6 (9th Cir. 1977) cert. denied 435 US. 946 (1978).

Despite petitioners claim otherwise, it was
consistent with Ninth Circuit practice for that Court to
address the issue of mootness, sua sponte. As the Ninth
Circuit properly has emphasized in the past, mootness is
not a discretionary matter which a court is free to ignore.
"Mootness is not merely a ducking device’... It goes
directly to the jurisdiction and power of the federal courts
to act." Naylor v. Superior Court of the State of Arizona,
558 F.2d at 1366; see also Lane v. Williams, 455 U.S. 624,
629 (1982); North Carolina v. Rice, 404 U.S. at 244, 246.

Although it is unclear upon exactly what bases the
Ninth Circuit dismissed petitioners’ habeas petitions,
respondent notes that petitioners were "in custody" when
they filed their federal petitions for writ of habeas corpus.

However, no case or controversy exists where, as
here, a habeas petitioner’s misdemeanor sentence has
been served and no present "collateral consequences"
remain as a result of the misdemeanor sentence or
conviction. Jd.

During the course of this long litigation, petitioners
have failed to demonstrate any substantial collateral
consequence flowing from their misdemeanor convictions
that should permit them to obtain federal habeas relief.

Indeed, petitioners, themselves, recognized the
negligible impact of their convictions and sentence when
they requested release on their own recognizance pending
determination of their habeas petitions.

19

Specifically, for example on or about September 30,
1991, following the Magistrate’s findings in their cases on
August 29 and August 30, 1991, petitioners each filed in
the Ninth Circuit a "Petition for Application for a Writ of
Mandamus for an Order Commanding Release of
Petitioner on Bail Pending Determination of Petition for
Writ of Habeas Corpus."

In the petitions, petitioners emphasized in bold
type that "if [they are] not released pending the
determination of [their] Writ of Habeas Corpus [their]
Petition[s] will become moot upon serving out [their]
sentence[s]." Pets. 1 10, p. 3. Petitioners also stated that:

"Because of the District Court’s large
number of civil actions now pending and
voluminous record submitted to the district

court for review, by the California Assistant

Attorney General . . ., petitioner[s] contends

[they] will serve [their] sentence prior to the

determination of the Petition for Writ of

Habeas Corpus therefore mooting [their]

Petition[s] for Writ of Habeas Corpus

contrary to the holding in North Carolina v.

Rice (1971 404 U.S. 244); Flast v. Cohen,

1968 392 U.S. 83 ...." M.Monteleone Pet.

p. 8, 1 25; A. Monteleone Pet., p. 7, 1 24.

Petitioners likewise contended: They "should not
have to remain incarcerated, and then released at the last
possible moment before serving [their] sentence[s] out
thereby preventing [their] Writ of Habeas Corpus from
becoming moot. However, it now appears that this is the
point that these proceedings have reached. Boyer v. City
of Orlando, 402 F.2d 966 (Sth Cir. 1968)... ." M.

20

Monteleone Pet. p. 8, 1 26; A. Monteleone Pet. p. 7, 1
25.

The allegations set forth in petitioners’ Ninth
Circuit rehearing petitions, and again in their certiorari
petitions, do not dispel petitioners’ original candid
assessment of impending mootness, or otherwise
demonstrate that petitioners’ misdemeanor tax offense
convictions carry actual legal "collateral" disabilities
sufficient to warrant federal habeas review.?/

Although it is an important function of our
judiciary to protect citizens from erroneous convictions,
the mootness inquiry in habeas attacks on state judgments
should be a stringent one. See, Cox v. McCarthy, 829 F.2d
800, 803-804 (9th Cir. 1987). Where as here habeas relief
is sought by out-of-custody state defendants who have had
full access to the state appellate process, the federal
courts should not be burdened with the broad task of
further reviewing all state misdemeanor convictions,
without proof of continuing material harm to the

3. Petitioners complain of the following general collateral
consequences as a result of their misdemeanor tax conviction: (1)
The "stigma" of being labeled "tax protestors" or "tax evaders"
"[g]iven today’s climate about paying one’s ’fair share’ of taxes.";
(2) sentence enhancement in future cases; (3) impeachment of
credibility in future cases; (4) bail enhancement; and that (5)
"Many state, federal, local and private employment forms require
disclosure by the applicant of any convictions or sentences served
by the applicant [e.g. Federal SF Form 171]." Cert. Pet., pp. 12-
15.

Petitioners also complain of the following specific
consequences of their misdemeanor tax convictions: (1) M.
Monteleone’s conviction was “used to terminate her from her job
as air traffic assistant with the FAA, as well as keeping her from
being re-instated." Cert. Pet. pp. 14-15.

21

complainants. See, 13A C. Wright, A. Miller & E.
Cooper, Federal Practice and Procedure § 3533.4, at 310-
311 (2d ed. 1984).

As this Court has observed with respect to the
important parameters of collateral habeas review:

"Collateral review of a final judgment is not

an endeavor to be undertaken lightly. It is

not warranted absent a showing that the

complainant suffers actual harm from the

judgment that he seeks to avoid." Lane v.

Williams, 455 U.S. at 632-633 n. 13.

Accordingly, the bare allegation that a social
"stigma" might attach to a conviction should not create the
necessary “collateral consequence" predicate for federal
habeas corpus relief. Naylor v. Superior Court, 558 F.2d at
1365; see also, Bjerkan v. U.S., 529 F.2d 125 (7th Cir.
1975); Broughton v. North Carolina, 717 F.2d 147, 148-149
& n. 3 (4th Cir. 1983) cert. denied 466 U.S. 940 (1984)
("continued reputational interests" which petitioner has in
overturning her criminal contempt conviction" is not "legal
consequence" which is remediable in federal habeas
petition).

Indeed, such a moral claim rings hollow in this
case, where petitioners voluntarily and publicly align
themselves with a "Sixteenth Amendment was never
properly ratified” tax protest group, and where any alleged
employment and financial woes would stem equally from
petitioners’ decision not to pay federal taxes as of 1983.
At trial petitioner A. Monteleone told the court that he
had resigned from his government job at Mare Island so
that the IRS would not continue to levy his paycheck. See
Exh. 3, 9/20/89 RT 6-11. Petitioner M. Monteleone also

22

stated "the IRS is levying my paycheck," and that she
made only $75 a week. See Exh. 3, 9/20/89 RT 6-11.

Likewise, it would be inappropriate to presume that
M. Monteleone lost her job at the FAA and is barred
from reinstatement solely as a result of her misdemeanor
state tax convictions.

It is respondent’s understanding that under federal
regulations, petitioner M. Monteleone could be removed
and barred from FAA employment based upon her failure
to pay federal tax debts, and that her conduct in
denouncing her tax responsibilities could be just cause for
her employers to question her ability to reliably perform
her public-safety related job. See App. F, e.g. United
States Office of Government Ethics, Standards of Ethical
Conduct For Employees of the Executive Branch, Part I,
Executive Order 12674 and 5 C.F.R. Part 2635 (August
1992) (setting forth requirement that employees "shall
satisfy in good faith their obligations as citizens, including
all just financial obligations, especially those such as
Federal, State, or local taxes that are imposed by law.");
Department of Transportation Federal Aviation
Administration’s Conduct and Discipline manual, Chapter
3, § 300 (providing that FAA employees "must conduct
themselves while off duty in a manner that will not cause
the public to question their reliability and trustworthiness

..").

Department of Transportation Federal Aviation
Administration’s Conduct and Discipline manual, Chapter
3, §305 (a) specifically provides in part:

"All employees are expected to
discharge their private financial obligations

and to maintain a reputation in the

23

community for honoring debts. Failure

without sufficient excuse or reason to honor

valid debts, including claims based on court

judgments and tax delinquencies, or to make

and adhere to reasonable arrangements for

settlement, will constitute grounds for

disciplinary action."

The failure to honor financial obligations is
pertinent to petitioner’s federal employer regardless of
whether petitioner is actually convicted of a state tax code
misdemeanor, or simply has decided not to pay state or
federal income tax, because both relate to the employer’s
assessment of petitioner’s judgment capabilities. */

Furthermore, respondent notes that in these
uncertain economic times, petitioner’s reinstatement to the
FAA or other federal job is hardly guaranteed. Although
not part of the record, it is respondent’s understanding
from speaking with Ms. Jan Proper Supervisory Personnel
Manager at the FAA Western Pacific Regional Office that
the FAA is not presently hiring persons for the position of

4. On January 16, 1991, Petitioner M. Monteleone filed in the
U.S. District Court an “Emergency Application For Release on Bail
Pending Habeas Corpus Determination." CR 5. In the application,
petitioner states that her employer would soon be terminating her
from her employment due to her absence from work as follows:

"Petitioner has been informed on January 7, 1991, by her
place of employment (FAA), that unless she returns to work by
January 30, 1991 that she will be considered AWOL and
terminated from her job. Petitioner, who applied for work
furlough release, was denied such release for the reason that the
FAA administrative examination board, upon review of her petition
for Habeas Corpus relief, determined that petitioner’s confinement
was a direct result of her failure to employ counsel in a timely
fashion at trial." CR 5.

24

Air Traffic assistant (the job formerly held by M.
Monteleone), and that it may be eliminating such positions
by Spring 1994 due to economic and_ resource
considerations.=!

Petitioners offer no proof that their employment
actually has been impeded by virtue of their convictions.
And where as here a petitioner has retired and may have
no real interest in seeking employment, or where the
petitioner has other legal difficulties which also would
operate to preclude that petitioner from obtaining a
particular job, the law should not presume that petitioner
has been occupationally disabled by virtue of a
misdemeanor conviction. Cf, Malloy v. Purvis, 681 F.2d
736, 737-740 (11th Cir. 1982); cert. denied, 460 U.S. 1071
(1983) ("tlemish on one’s record resulting from one
conviction is [not] enough of a collateral consequence to
prevent a habeas corpus petition from being moot, where
the petitioner is not in custody and where the petitioner
has multiple convictions").

It is one thing when a criminal conviction materially
affects a person’s present ability to remain a licensed
professional, or otherwise has effects of a "substantial
nature" such as deprivation of basic rights such as "the
right to vote and the right to serve on a jury,’ i.e.,
consequences more generally associated with felony
convictions. See, Bjerkan v. United States, 529 F.2d at 126-
127; see generally, Comment, Civil Disabilities of Felons, 53

5. Respondent brings to the Court’s attention, these and other
facts which are not part of the record below, so that the Court can
fully evaluate the merits of granting review and “flush the
problems" of this case "at the certiorari stage." Conway v. Adult
Authority, 396 U.S.107, 109-110 (1969).

25

Va.L.Rev. 403 (1967). It is entirely another matter when
the criminal conviction has only speculative consequences
or consequences which would be imposed only in the
event of the complainant’s own future wrong-doing. Cf.
Aaron v. Pepperas, 790 F.2d 1360, 1362 (9th Cir. 1986).

A person can control whether or not s/he violates
a criminal law and courts should be reluctant to find
collateral consequences when the possibility that a
petitioner will be adversely affected in the future depends
solely upon a petitioner’s own misdeeds. See Lane v.
Williams, 455 U.S. at 632-633, n. 13; Cf. Reimers v. State
of Oregon, 863 F.2d 630, 632 (9th Cir. 1988).

For similar reasons, petitioners’ additional concern
that they may be impeached in possible future trials, or
otherwise legally handicapped by the blemish on their
record resulting from failure to file state tax forms is, in
a practical sense, unavailing.

It is a fact that petitioners have not filed tax
returns since 1982. Should the matter be raised in the
future in any judicial proceeding, petitioners will suffer the
same adverse practical consequences from their failure to
file federal tax returns--even though the federal
government did not pursue a criminal action against them.
Failure to file a federal tax return involves the same type
of fraudulent irresponsible conduct which underlies their
state tax code convictions. It is this underlying conduct,
not the fact of conviction which can be used to impeach
their credibility as trial witnesses. See People v. Wheeler, 4

26

Cal.4th 284, 288 (1992).£/

Likewise, it is speculation that the misdemeanor
convictions would have an adverse legal impact on
petitioners should they encounter future legal proceedings.
For example, state tax code violations are not, like some
designated crimes (e.g., sex and gun offenses), specifically
used in sentence enhancement. Similarly, because
petitioners skirted no court appearances in this litigation,
they probably would not be subject to bail penalties in a
future action.

Therefore, while it may be the presumption that
convictions carry continuing collateral "legal" consequences
in cases brought on direct appeal (see Sibron v. New York,
392 U.S. 40, 51, 53-58 (1968); Pennsylvania v. Mimms, 434
U.S. 106, 108, n.3 (1977)), such a presumption should not
likewise attach in cases where federal habeas relief of
state court judgments is sought.

In these circumstances, neither this Court nor
others should be compelled to speculate or presume that
there are always adverse consequences from the
imposition of a criminal sanction. See, North Carolina v.
Rice, 404 U.S. at 244 (remanding to the lower court for a
factual determination of whether more serious adverse
consequences would flow from a two-year sentence than
from a nine-month suspended sentence.).

Otherwise, the collateral consequence doctrine has
expanded to such an extent that the mootness inquiry in

6. Respondent also observes that before such impeachment
would be permitted, the trial court generally first would have to
determine that the evidence was more probative than prejudicial.
People v. Wheeler 4 Cal.4th at 284.

ae TS eee ee

27

habeas appeals of state convictions is virtually obsolete,
having been replaced by a flat rule that a petitioner
should be entitled to have any final state conviction
reviewed by the federal courts. Courts have not found
"the Supreme Court desired to hold that a conviction in
and of itself constituted a collateral consequence" and thus
have "refuse[d] to sanction a rule that would effectively
abrogate the meaning and purpose underlying the
requirement of proving collateral consequences." See,
Malloy v. Purvis, 681 F.2d at 738-740.

The "doctrine of collateral consequences [should
be] a narrow exception to the general mootness rule," and
not the exception which swallows the rule. See, Robbins
v. Christianson, 904 F.2d 492 (9th Cir. 1990) and see id. at
pp. 496-497, dissenting op., Noonan, J.

Accordingly, in habeas cases such as this one,
speculative nonstatutory disabilities from a state court
misdemeanor sentence or conviction such as the effect of
the jail term on employment prospects or on a sentence
imposed in a future criminal proceeding should be
insufficient to save a case from being moot once the
sentence has been served. Lane v. Williams, 455 US. at
631-633; Carafas v. LaVallee, 391 U.S. at 237; see also
U.S. v. Sultani, 704 F.2d 132 (4th Cir. 1983) (appeal from
traffic violetion was moot after successful completion of
probationary period as no collateral consequences from
the conviction); Arnold v. Panora, 593 F.2d 161, 163-164
(1st Cir. 1979) (challenge to drivers’ license suspension
moot where collateral consequences such as damage to
reputation and possible adverse treatment by insurance
companies were practical not legal); Cancino v. Craven,
511 F.2d 1371, 1373 (9th Cir. 1975) cert. denied 423 US.

28

875 (1975) (Payment of $50 fine mooted appeal from an
attorney’s contempt conviction, despite the contention that
the conviction might have consequences on his future
career for political office).

A material effect on the petitioner’s present legal
rights should be necessary to permit habeas review of a
state court misdemeanor conviction.

Because petitioners’ unsupportable allegations here
do not satisfy this burden or any Article III threshold, the
case is properly dismissed as moot.

29

CONCLUSION

For the foregoing reasons, we respectfully submit
that the petition for a writ of certiorari should be denied.
In the alternative, we request that the Ninth Circuit
Court of Appeals order dismissing the habeas petitions be
vacated and the matter be remanded to the Court of

Appeals for a decision on the merits.

Dated: September 3, 1993.

Respectfully sub-nitted,

DANIEL E. LUNGREN
Attorney General

GEORGE WILLIAMSON

Chief Assistant Attorney General
RONALD A. BASS

(De Attorney General
ANN K. JENSEN

Supervising Deputy Attorney General
[Counsel of Record]

ENID A. CAMPS
Deputy Attorney General

Attorneys for Respondent

EAC:cmb
SF93US0003

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_0968%3A2. Public record. Not legal advice.