United States v. Allison , 264 F. App'x 450 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 4, 2008
No. 06-20973 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
KENNETH RICHARD ALLISON
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
4:06-CR-143
Before JONES, Chief Judge, and GARWOOD and JOLLY, Circuit Judges.
PER CURIAM:*
Kenneth Richard Allison appeals his conviction for corruptly interfering
with the administration of the Internal Revenue Code and willfully making and
subscribing false documents. He contends that he was denied the constitutional
right to represent himself and that the evidence was insufficient to support his
conviction. Finding no error, we AFFIRM his conviction.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-20973
I.
Allison was indicted for one count of corruptly interfering with the
administration of the Internal Revenue Code in violation 26 U.S.C. § 7212(a) and
five counts of willfully making and subscribing false documents in violation of
26 U.S.C. § 7206(1).
Before trial the government moved for a hearing under Faretta v.
California, 422 U.S. 806 (1975), to determine whether Allison waived his right
to be represented by counsel. Allison had filed several documents and pro se
motions, suggesting a desire to represent himself. At the hearing, the court
questioned Allison about his understanding of the processes involved in
representing himself and advised him of the difficulties of self-representation.
Allison indicated a desire to file his own motions and have his court-appointed
attorney act as standby counsel. However, Allison repeatedly refused to waive
his constitutional right to be represented by counsel and finally stated that he
would do so only under duress. The court found that Allison had not waived his
right to be represented by counsel and that the court-appointed counsel would
continue to represent him.
At trial, evidence was presented showing that Allison had been arrested
in November 1998 following a traffic stop. The arrest resulted in traffic citations
for Allison and proceedings in the Municipal Court for the City of La Porte. In
October 1999, the City of La Porte, the municipal court judge in Allison’s traffic
case, the arresting officer, and other municipal employees were named in a
federal civil lawsuit brought by Allison. The municipal court judge testified that
he transferred the case to the Justice of the Peace Court to avoid a conflict of
interest. In April 2000, the traffic case was transferred to the Harris County
Court.
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No. 06-20973
In May 2000 Allison filed six tax forms, Form 8300, Report of Cash
Payments Over $10,000 Received in a Trade or Business.1 The forms falsely
indicated that the municipal court clerk for the City of La Porte had received
money orders in amounts ranging from $1,000,000 to $99,000,000,000. The
forms indicated that the money orders were received on Allison’s behalf from
employees of the City of La Porte, including police officers, the mayor of La
Porte, clerks of the La Porte municipal court, and the municipal court judge in
Allison’s traffic case. Each of the forms was signed by Allison under penalty of
perjury, included his social security number, and designated his title as
“employer.” The word “refused” was written in a box intended for the payor’s
social security number, and a box labeled “suspicious transaction” was checked
on each form. A government witness who processes such forms for the IRS
testified that written words in the box intended for a social security number
trigger an “error correspondence,” which results in a letter to the individual from
whom the cash was received seeking additional information about the
transaction. Checking the box labeled “suspicious transaction” results in the
form being flagged by the computer system, resulting in further investigation of
the reported transaction and the parties involved.
Allison did not deny filing the Form 8300s, and his trial counsel conceded
that they were false. The theory of his defense was that he did not willfully lie
and did not act corruptly because he believed that the forms were legitimate
according to a set of peculiar claims sometimes called the “Redemption Theory.”
According to Allison, the United States maintains direct treasury accounts
linked to citizens’ birth certificates from which citizens can make transfers of
debt through a “strawman.” Allison testified that he was able to mail the
municipal employees various papers purporting to be “bills of exchange” and,
1
One of the forms apparently was not signed, and Allison was not charged based on
that form.
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No. 06-20973
when he received no response, legitimately report to the IRS transfers of money
or debt in the accounts maintained by the treasury. The details of the theory are
convoluted, but the essence of Allison’s testimony was that he believed the Form
8300s he filed were legitimate.
Rejecting this testimony, the jury found Allison guilty on all counts. For
each of the six counts, Allison was sentenced to sixteen months imprisonment,
one year of supervised release, and a fine, all to run concurrently.
II.
Allison contends on appeal that the district court erred by denying him the
right to represent himself. He also challenges the sufficiency of the evidence to
support his conviction under 26 U.S.C. § 7212(a), contending that the evidence
did not prove he acted “corruptly,” as required by the statute.2
The government contends that Allison did not unequivocally waive his
Sixth Amendment right to counsel and the court therefore properly denied his
request to represent himself. The government contends that the evidence was
sufficient to show that Allison acted corruptly because there was sufficient
evidence for the jury to find that he acted to obtain an unlawful benefit for
himself.
III.
A.
Allison first contends that he was denied his constitutional right to self-
representation, as recognized in Faretta v. California, 422 U.S. 806 (1975), and
2
Allison also contends that he received ineffective assistance of counsel. He concedes,
however, that the “record is not sufficiently developed to allow a fair evaluation of the merits
of the claim” and raises it only to preserve it for later review. We have held that "Sixth
Amendment claims of ineffective assistance of counsel should not be litigated on direct appeal,
unless they were previously presented to the trial court." United States v. Partida, 385 F.3d
546, 568 (5th Cir. 2004). This court will consider such claims on direct appeal only in "rare
cases" in which the record allows a reviewing court to "fairly evaluate the merits of the claim."
Id. We do not find this to be such a case and accordingly decline to address this claim for the
first time on appeal.
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No. 06-20973
its progeny. He contends that the district court erred by not allowing him to
proceed pro se, with his court-appointed attorney as standby counsel.3
We review a constitutional challenge relating to the Sixth Amendment
right of self-representation de novo. United States v. Jones, 421 F.3d 359, 363
(5th Cir. 2005).
In Faretta, the Supreme Court held that a criminal defendant has a right
to represent himself, provided that the accused “knowingly and intelligently”
waives the right to be represented by counsel. 422 U.S. at 835. Such a waiver
must be “clear and unequivocal,” a requirement this circuit has strictly
construed. Burton v. Collins, 937 F.2d 131, 133 (5th Cir. 1991). We “indulge
every reasonable presumption against waiver” of the fundamental constitutional
right to the assistance of counsel. Id.In this case, Allison did not clearly and unequivocally waive his Sixth
Amendment right to the assistance of counsel. Instead, he unequivocally stated
several times during his Faretta hearing that he did not waive his constitutional
rights. Although he also expressed a desire to manage his own case and file his
own papers, he would not consent to waive his constitutional right to the
assistance of counsel. He suggested that he would waive his right to counsel
“under duress,” but that he “can’t do it freely.” The district court properly denied
this request, because a waiver made under duress is by definition not a
voluntary waiver of a fundamental constitutional right.
3
Allison criticizes some of the district court’s comments and admonitions encouraging
him to accept the assistance of counsel and advising him of the difficult nature of the task of
representing himself. Although he states that some of the comments the court made unfairly
prejudiced him, he does not show any particular prejudice arising from the court’s comments
or that the court failed to properly execute its duty to make a defendant seeking to represent
himself “aware of the dangers and disadvantages of self-representation, so that the record will
establish that he knows what he is doing and his choice is made with eyes open.” Faretta, 422
U.S. at 835 (quotation marks and citation omitted).
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No. 06-20973
Allison’s contention that he was entitled to proceed with standby counsel
is without merit. A defendant proceeding pro se has no constitutional right to
standby counsel. McQueen v. Blackburn, 755 F.2d 1174, 1178 (5th Cir. 1985)
(holding that, although the appointment of standby counsel following the
dismissal of trial counsel is the preferred practice, it is not mandatory). See also
United States v. Mikolajczyk, 137 F.3d 237, 246 (5th Cir. 1998). More
importantly, the district court could not appoint standby counsel unless Allison
was proceeding pro se, having unequivocally waived his right to be represented
by counsel. As the district court properly found, Allison did not waive his right
to counsel, so the court did not err in denying his request to represent himself.
B.
Allison contends that the evidence was insufficient to support the jury’s
finding that he acted “corruptly” to impede the administration of the Internal
Revenue Code as proscribed by 26 U.S.C. § 7212(a).
When the sufficiency of evidence is challenged, the standard of review that
we apply is whether a rational jury could have found that the evidence
established the essential elements of the crime beyond a reasonable doubt.
United States v. Mitchell, 484 F.3d 762, 768 (5th Cir. 2007). We consider the
evidence, all inferences drawn from it, and all credibility determinations in the
light most favorable to the verdict. Id. “The evidence need not exclude every
reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt, and the jury is free to choose among reasonable
constructions of the evidence.” Id. (quotation marks and citation omitted).
Section 7212(a) provides that “[w]hoever corruptly. . . endeavors to
intimidate or impede any officer or employee of the United States acting in an
official capacity under this title or in any other way corruptly . . . obstructs or
impedes, or endeavors to obstruct or impede the due administration of this title”
shall be guilty of an offense. We have stated that one acts corruptly in the
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No. 06-20973
context of § 7212(a) when one acts “with the intention of securing improper
benefits or advantages for one’s self or others.” United States v. Reeves, 752 F.2d
995, 1001-02 (5th Cir. 1985). See United States v. Saldana, 427 F.3d 298, 305
(5th Cir. 2005) (holding that the improper benefit sought need not be a benefit
under the tax laws to support conviction under § 7212); United States v.
Bowman, 173 F.3d 595, 600 (6th Cir. 1999) (holding that § 7212(a) proscribes “an
individual’s deliberate filing of false forms with the IRS specifically for the
purpose of causing the IRS to initiate action against another taxpayer”).
In this case, there was sufficient evidence for the jury to find beyond a
reasonable doubt that Allison filed false Form 8300s in order to harass or
intimidate city employees and thereby obtain some advantage in the proceedings
against him arising out of his arrest and related traffic citations or in the federal
lawsuit he had filed against the city and its employees. For example, a jury
could have concluded that such intimidation as bringing the IRS in to
investigate city employees would deter any prosecution of him and cause those
involved in enforcing the laws to treat Allison exceptionally; furthermore, a
reasonable jury could have concluded that the city might find it to its advantage
to settle the civil suit favorably to Allison to avoid such harassing tactics. Or a
jury easily could have concluded that Allison believed that such tactics would
benefit him in his litigation with the city. Indeed, an IRS witness testified that
filling out the forms with the word “refused” written in the blank intended for
a social security number and with the “suspicious transaction” box checked
would lead to investigation by the IRS. Both his criminal and civil proceedings
were pending at or around the time he filed the false Form 8300s. Although
Allison testified that he believed his actions were legitimate and that he sought
no benefit for himself, the jury was entitled to reject Allison’s testimony.
Viewing the evidence in the light most favorable to the verdict, we hold that
there was sufficient evidence to support the jury’s conclusion that Allison acted
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No. 06-20973
with the intent to secure an improper advantage for himself and therefore acted
corruptly under § 7212(a).
IV.
For the foregoing reasons Allison’s conviction is
AFFIRMED.
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