United States v. Nancy E. Wilson, United States of America v. Buddy Rex Wilson

639 F.2d 500 81-1 USTC P 9194 UNITED STATES of America, Appellee, v. Nancy E. WILSON, Appellant. UNITED STATES of America, Appellee, v. Buddy Rex WILSON, Appellant. Nos. 80-1255, 80-1256. United States Court of Appeals, Ninth Circuit. Submitted Oct. 10, 1980. Decided Feb. 9, 1981. Jo Ann D. Diamos, Tucson, Ariz., for Nancy Wilson. S. Jeffrey Minker, Tucson, Ariz., for Rex Wilson. Gerald S. Frank, John G. Hawkins, Asst. U. S. Attys., Tucson, Ariz., for appellee. Appeal from the United States District Court for the District of Arizona. Before KILKENNY and GOODWIN, Circuit Judges, and REAL, * District Judge. GOODWIN, Circuit Judge. 1 The Wilsons, who were charged with filing false withholding statements during 1979 in violation of 26 U.S.C. § 7205 , moved to dismiss the indictment on grounds of selective prosecution. They argued that the government prosecuted them only because they had exercised their First Amendment right to protest the income tax or because they had exercised their Fifth Amendment right not to answer IRS' questions. The district court denied the motion and they appeal. 2 Two issues are presented. The first is whether this court has jurisdiction under Abney v.…

The Wilsons, who were charged with filing false withholding statements during 1979 in violation of 26 U.S.C. § 7205 , moved to dismiss the indictment on grounds of selective prosecution. They argued that the government prosecuted them only because they had exercised their First Amendment right to protest the income tax or because they had exercised their Fifth Amendment right not to answer IRS’ questions. The district court denied the motion and they appeal.

Two issues are presented. The first is whether this court has jurisdiction under Abney v. United States, 431 U.S. 651 , 97 S.Ct. 2034 , 52 L.Ed.2d 651 (1977), and its progeny, to hear this interlocutory appeal. If so, we must decide whether the Wilsons presented sufficient evidence of an illegal prosecution to warrant pretrial dismissal.

I. JURISDICTION

Abney held that a double jeopardy ruling is immediately appealable under the collateral order exception to the final judgment rule. In United States v. Griffin, 617 F.2d 1342 (9th Cir. 1980), this court extended the Abney exception to certain orders denying motions alleging “vindictive” prosecution. The question whether the Griffin exception should be applied equally to…

(concurring).

I concur in the result.

I do not agree that selective prosecution should be treated in the same manner as the double jeopardy claim made in Abney v. United States, 431 U.S. 651 , 97 S.Ct. 2034 , 52 L.Ed.2d 651 (1977) or the vindictive prosecution claims made in United States v. Griffin, 617 F.2d 1342 (9th Cir. 1980). I do share with the majority their concern for the proliferation of interlocutory appeals caused by Griffin but do not approach the selective prosecution questions raised by this appeal from that standpoint. I differ with the majority because they run headlong into the semantic trap of putting vindictive and selective prosecution in the same basket when they come from totally different gardens.

No one should question the distinction between a claim of double jeopardy expressly prohibited by the 5th Amendment and a claim of selective prosecution. Double jeopardy — aside from its constitutional underpinnings — involves a defendant who is being put to the trauma and expense of a second prosecution for conduct already subjected to the scrutiny of a trier of fact and decided either for or against the defendant in the first prosecution. Selective…