United States v. James Walter Scott

521 F.2d 1188 75-2 USTC P 9575 UNITED STATES of America, Plaintiff-Appellee, v. James Walter SCOTT, Defendant-Appellant. No. 74-2302. United States Court of Appeals, Ninth Circuit. June 18, 1975. Rehearing Denied Sept. 25, 1975. John J. Matonis (argued), Washington, D.C., for defendant-appellant. James H. Jeffries, Atty. (argued), Dept. of Justice, Washington, D.C., for plaintiff-appellee. OPINION Before BROWNING and TRASK, Circuit Judges and WILLIAMS, * District Judge TRASK, Circuit Judge: 1 Scott was convicted after a jury trial in district court of failure to file income tax returns for the years 1969, 1970, 1971 and 1972 in violation of 26 U.S.C. § 7203 . He was sentenced to 1 year on each count, the sentences to run concurrently. This appeal is from the conviction and from the trial court's denial of motions for arrest of judgment, and for a new trial. Scott, who is not an attorney, represented himself at trial but had counsel for his post-trial motions and on appeal. 2 Appellant styles himself a "national tax resistance leader." 1 He admitted at trial that he had not filed the returns but argued that, since his failure was based on his constitutional beliefs and his…

Scott was convicted after a jury trial in district court of failure to file income tax returns for the years 1969, 1970, 1971 and 1972 in violation of 26 U.S.C. § 7203 . He was sentenced to 1 year on each count, the sentences to run concurrently. This appeal is from the conviction and from the trial court’s denial of motions for arrest of judgment, and for a new trial. Scott, who is not an attorney, represented himself at trial but had counsel for his post-trial motions and on appeal.

Appellant styles himself a “national tax resistance leader.” 1 He admitted at trial that he had not filed the returns but argued that, since his failure was based on his constitutional beliefs and his reading of various Supreme Court *1190 cases, his failure was not willful within the meaning of the statute.

Two main issues are presented for decision by this court. The first involves the presence of a government agent in appellant’s defense group at trial. The second.is whether appellant was imper-missibly singled out for prosecution by the government.

During much of the trial an undercover agent of the Internal Revenue Service was present among a group of fellow tax resisters who were…

(dissenting):

I agree that appellant’s charge of discriminatory prosecution must be rejected, but dissent from the dismissal of appellant’s claim that, by the surreptitious intrusion of a government agent into the defense camp, he was denied due process and the effective exercise of his right to represent himself.

It is undisputed that Swanson was a paid undercover agent of the government posing as a member of a tax protestors organization. It is admitted that he attended appellant’s trial in that capacity with the knowledge and approval of the IRS agent in Fresno associated with appellant’s case. It is furthermore conceded that during the trial he participated in discussions and meetings among the tax protestors, including appellant, both in the courtroom and, at the close of the trial each day, in the motel where the group stayed. The exact nature of his participation is disputed. Affidavits submitted by appellant assert that Swanson discussed appellant’s defense with appellant and his lay advisors, advised appellant regarding trial strategy, and urged him to take the stand. Swanson, by affidavit, admits that he attended conferences and meetings regarding the trial but asserts…