No. 96-7983A IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 ROBERT BARNWELL CLARKSON, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General LORETTA C. ARGRETT Assistant Attorney General ROBERT E. LINDSAY ALAN HECHTKOPF MICHAEL E. KARAM Attorneys Department of Justice Washington D.C. 20530-0001 (202) 514 - 2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the district court erred in determining that there was no evidentiary foundation to support a jury instruction concerning petitioner's First Amendment defense. 1 ___________________(footnotes) 1 Although the United States initially waived its response to this petitioner, this Court, by letter dated March 18, 1997, requested a response limited to the first question presented in the petition. (I) ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1996 No. 96-7983 ROBERT BARNWELL CLARKSON, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals, Pet. App. A1-A10, is reported at 98 F.3d 155. JURISDICTION The judgment of the court of appeals was entered on October 11, 1996. Pet. App. A1-A10. A petition for rehearing was denied on November 19, 1996. Pet. App. A11. The petition for a writ of certiorari was filed on February 14, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT Petitioner and two co-defendants were convicted on a single count of unlawfully conspiring to defraud the United States by impairing the ability of the Internal Revenue Service to ascertain and collect income taxes, in violation of 18 U.S.C. ---------------------------------------- Page Break ---------------------------------------- 2 371. Pet. App. A3. 2 Petitioner was sentenced to 57 months of imprisonment, to be followed by three years' supervised release. Gov't C.A. Br. 4. The court of appeals affirmed. Pet. App. A1- A10. 1. Beginning in 1989, petitioner was a central figure in a North Carolina group known as the "Hickory Patriots." At the group's meetings, petitioner urged attendees not to pay federal income taxes, and he recommended specific ways to avoid official detection of their tax evasion. Gov't C.A. Br. 4. For example, at one tax-evasion "class," petitioner instructed attendees to claim nine allowances on their W-4 forms (to avoid having taxes withheld) and then not to file tax returns. See id. at 6. He specifically demonstrated how to fill out a W-4 form to carry out that scheme. Id. at 6, 9. He also instructed attendees to hide their income from the IRS by dealing only in cash, avoiding banks, and using politicians' names when purchasing money orders. Id. at 9, 11. On one occasion, he advised an undercover agent, who claimed to have received an IRS summons, to burn any records that he did not wish the authorities to see. Id. at 9-10. Many of those attending these meetings were dues-paying members of the Patriots, Gov't C.A. Br. 4 - 5, 12, who closely followed petitioner's tax-evasion advice by, for example, ___________________(footnotes) 2 Section 371 provides, in relevant part: If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. ---------------------------------------- Page Break ---------------------------------------- 3 claiming nine allowances on their W-4 forms, failing to file tax returns, and avoiding a paper trial. Id. at 10-11. Petitioner revealed that one could make a lot of money by teaching the Patriot's classes or by becoming a local group leader; several people, he noted, had made more than 1,000,000 by conducting group sessions. Id. at 12. 2. On appeal, petitioner challenged his conviction on, inter alia, the ground that the district court had erroneously denied his request for a jury instruction concerning First Amendment limits on prosecutions for "speech that merely advocates non-compliance with the law." 3. The court of appeals agreed that petitioner "would have been entitled to an instruction on a First Amendment defense if there were evidence sufficient for a reasonable jury to find in [his] favor on that account." Pet. App. A5 (citing Mathews v. United States, 485 ___________________(footnotes) 3 Petitioner requested the following instructions (Pet. App. A5 n.3): #46. The first amendment to the Constitution protects a speaker's words and expressions unless both the intent of the speaker and the tendency of the speaker's words was likely to produce or incite an imminent lawless act, one likely to occur. The first amendment protects speech that merely advocates non-compliance with the law. If you determine that a speaker's purpose, or the tendency of the speaker's words, was directed to ideas or results remote from the purposes or objective of the alleged conspiracy, then that speech is protected. However, if the intent of the speaker and the tendency of the speaker's words was to produce or incite an imminent lawless act, then the speech is not protected by the first amendment. #38. A "conspiracy to defraud the United States" is not proven by the mere open defiance of a governmental purpose to enforce a law by urging persons subject to it to disobey it. ---------------------------------------- Page Break ---------------------------------------- 4 U.S. 58, 63 (1988)). Specifically, the court added, such an instruction would be warranted "if there is evidence that the speaker's purpose or words are mere abstract teaching of the moral propriety of opposition to the income tax law." Id. at A5- A6 (citing United States v. Freeman, 761 F.2d 549 (9th Cir. 1985), cert. denied, 476 U.S. 1120 (1986)). The court held, however, that there was no evidentiary foundation for a First Amendment instruction on the facts of this case because petitioner's "words and acts were not remote from the commission of the criminal acts." Pet. App. A6. Specifically, "the attendees [of the Patriots' meeting] followed the instruction and advice of [petitioner and his co-defendants], * * * the attendees' unlawful actions were solicited by the defendants, and * * * the defendants were aware that the attendees were following their instructions and advice." Ibid. "[I]t was no theoretical discussion of noncompliance with law; action was urged; the advice was heeded and false forms were filed." Pet. App. A6-A7 (quoting United States v. Kelley, 769 F.2d 215, 217 (4th Cir. 1985)). In sum, the court concluded, "no reasonable juror could [have] conclude[d] that the defendants' words and actions were merely advocating opposition to the income tax laws," and the district court therefore had not erred in refusing to submit a First Amendment instruction to the jury. Pet. App. A6-A7. ARGUMENT Petitioner renews his contention (Pet. 11-15) that his conviction should be reversed because the district court did not ---------------------------------------- Page Break ---------------------------------------- 5 instruct the jury on his First Amendment defense. That claim is without merit and warrants no further review. "As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." Mathews v. United States, 485 U.S. 58, 63 (1988). Here, petitioner would have been entitled to a First Amendment instruction if a reasonable juror could have construed the conduct underlying his conspiracy charge as simple "advocacy [of] abstract ideas or remote action," United States v. Freeman, 761 F.2d 549, 552 (9th Cir 1985), cert. denied, 476 U.S. 1120 (1986), rather than as the facilitation of specifically anticipated criminal acts. See Brandenburg v. Ohio, 395 U.S. 444, 449 (1969) (per curiam) (invalidating conviction for violation of state statute outlawing "mere advocacy not distinguished from incitement to imminent lawless action"); cf. Noto v. United States, 367 U.S. 290, 298 (1961) (narrowly construing statutory prohibition on membership in organizations advocating violent overthrow of government to apply only to groups making "concrete and particular" call to violence "now or in the future"); Yates v. United States, 354 U.S. 298 (1957) (similar). No reasonable juror, however, could have made that determination on the facts of this case. As described above (see pp. 2-3), petitioner not only urged the attendees of his "classes" to commit tax evasion, but also instructed them on the precise details of how to violate the tax laws without arousing official scrutiny. As petitioner planned ---------------------------------------- Page Break ---------------------------------------- 6 and expected, the attendees - - many of whom had paid substantial "dues" for membership in the Patriots - - soon violated the tax laws in precisely the manner in which he had recommended. Indeed, the conspiracy charged here is legally indistinguishable from many other conspiratorial arrangements in which one conspirator provides his co-conspirators with specialized knowledge about the most effective means of carrying out a concrete, illegal plan. As other courts of appeals have found on similar facts, the conduct for which petitioner was prosecuted is far afield from the mere advocacy protected by the First Amendment. See United States v. Rowlee, 899 F.2d 1275 (2d Cir.), cert. denied, 498 U.S. 828 (1990); United States v. Buttorff, 572 F.2d 619, 622-624 (8th Cir.), cert. denied, 437 U.S. 906 (1978); see also United States v. Kelley, 769 F.2d 215 (4th Cir. 1985); United States v. Daly, 756 F.2d 1076, 1081-1082 (5th Cir.), cert. denied, 474 U.S. 1022 (1985); cf. Freeman, 761 F.2d at 552 (First Amendment instruction necessary with respect only to counts of indictment based on "statements that, at least arguably, were of abstract generality, remote from advice to commit a specific criminal act"). 4 ___________________(footnotes) 4 In United States v. Dahlstrom, 713 F.2d 1423 (1983), cert. denied, 466 U.S. 980 (1984), the Ninth Circuit suggested in dicta that, in the absence of "imminent lawless action," the First Amendment might protect "instruct[ing] an audience on how to set up a particular tax shelter" even if the instructor "knew that a taxpayer who actually performed the actions [he] advocated would be acting illegally." Id. at 1428 (emphasis deleted). In Freeman, however, the Ninth Circuit later construed Dahlstrom to hold only that, on the facts of that case, "the legality of the proposed [tax shelter] transaction was unsettled and, against this background, * * * that the likelihood of an imminent violation had not been established." 761 F.2d at 552. ---------------------------------------- Page Break ---------------------------------------- 7 Petitioner claims that the district court's failure to give a First Amendment instruction was inconsistent with this Court's decision in United States v. Gaudin, 115 S. Ct. 2310 (1995). That is incorrect. As petitioner observes (Pet. 15), Gaudin holds that "[t]he Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged." Id. at 2320. Here, however, the district court did not withhold any element of petitioner's offense from the jury's consideration, and neither Gaudin nor any other decision of this Court suggests that a criminal defendant is constitutionally entitled to a jury instruction on a legal defense for which, as in this case, there is no evidentiary foundation. Finally, petitioner's reliance on Hammerschmidt v. United States, 265 U.S. 182 (1924), is without merit. In Hammerschmidt, this Court held that, to be guilty of conspiring to defraud the United States within the meaning of a statutory predecessor to 18 U.S.C. 371, a defendant had to have done more than merely advocate noncompliance with the law; the defendant also had to have conspired to "interfere with or obstruct one of the [government's] lawful * * * functions by deceit, craft or trickery, or at least by means that are dishonest." Id. at 188. In conformity with that principle, the district court in this case instructed the jury that, to convict petitioner under Section 371, it had to find that he "knowingly engaged in [speech or conduct] so as to deceive the government." Gov't C.A. Br. 30. As discussed above, the evidence fully supported the jury's ---------------------------------------- Page Break ---------------------------------------- 8 determination that petitioner had in fact conspired with others to deceive the government about their tax liability. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General LORETTA C. ARGRETT Assistant Attorney General ROBERT E. LINDSAY ALAN HECHTKOPF MICHAEL E. KARAM Attorneys MAY 1997