United States v. Lawrence M. Richey

924 F.2d 857 67 A.F.T.R.2d 91 -469, 59 USLW 2475 , 91-1 USTC P 50,055 UNITED STATES of America, Plaintiff-Appellee, v. Lawrence M. RICHEY, Defendant-Appellant. No. 88-3276. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 6, 1990. Decided Jan. 23, 1991. Christopher Tait, Yakima, Wash., for defendant-appellant. Carroll D. Gray, Asst. U.S. Atty., Spokane, Wash., for plaintiff-appellee. Appeal from the United States District Court for the Eastern District of Washington. Before WRIGHT, REINHARDT and O'SCANNLAIN, Circuit Judges. O'SCANNLAIN, Circuit Judge: 1 We are asked to decide whether prosecution and conviction of a former Internal Revenue Service employee, for willfully disclosing to the public information about a certain federal income tax return, violates his first amendment right to freedom of expression.I 2 Lawrence Richey was an Internal Revenue Service ("IRS") agent for approximately twenty-five years. In 1970, he audited Alan McDonald, who was then an attorney in private practice. After Richey examined McDonald's income tax returns for the years 1967-69, the IRS assessed $1,033.33 in additional taxes. McDonald paid the assessment. 3 After retiring…

We are asked to decide whether prosecution and conviction of a former Internal Revenue Service employee, for willfully disclosing to the public information about a certain federal income tax return, violates his first amendment right to freedom of expression.

*858 I

Lawrence Richey was an Internal Revenue Service (“IRS”) agent for approximately twenty-five years. In 1970, he audited Alan McDonald, who was then an attorney in private practice. After Richey examined McDonald’s income tax returns for the years 1967-69, the IRS assessed $1,033.33 in additional taxes. McDonald paid the assessment.

After retiring from the IRS in 1981, Richey joined a private tax preparation service. He soon became involved in a tax shelter scheme and was indicted in 1985 for conspiracy to defraud the government and for aiding and assisting in the preparation of false and fraudulent tax returns.

Richey’s case came to trial before a jury in 1987. Presiding as judge was the same Alan McDonald, who had become a United States District Judge for the Eastern District of Washington. Richey did not bring a motion to recuse Judge McDonald nor did Judge McDonald recuse himself. The jury found Richey guilty as…

dissenting:

Lawrence Richey’s odyssey through the courts constitutes a sad chapter in this circuit’s performance of its judicial duties. Twice now, we have severely stretched the limits of legal reasoning in order to avoid a serious issue regarding judicial conflict of interests. Twice now, significant violations of Richey’s first amendment rights have occurred — each time with the active participation of the judiciary. While Richey’s original complaints of actual judicial bias may well have been wholly without merit— and I think it reasonable to assume that they were — his allegations raise a serious question whether the district judge failed to recuse himself as required by 28 U.S.C. § 455 (1982). Moreover, the subsequent actions of this court have given rise to an even more serious question — whether the judiciary is willing to protect free speech when its own self-interest is involved. I should state at the outset that I do not believe that there is any judicial conspiracy to silence or punish Richey, or even any deliberate exercise of judicial ill-will toward *864 him. There is, however, a remarkable judicial blindness — or perhaps a remarkable judicial insensitivity to the…