ROY WILLIAM COLLINS, PETITIONER V. UNITED STATES OF AMERICA No. 90-6994 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit Brief For The United States In Opposition OPINIONS BELOW The decision of the court of appeals (Pet. App. Item i 1-33) is reported at 920 F.2d 619. JURISDICTION The judgment of the court of appeals was entered on November 27, 1990. A petition for rehearing was denied on January 8, 1991. Pet. App. Item iii. The petition for a writ of certiorari was filed on February 4, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court violated petitioner's Sixth Amendment right to the assistance of counsel by revoking the pro hac vice admission of his attorney. 2. Whether the district court erred by instructing the jury that it could consider the reasonableness of petitioner's alleged belief that he did not owe taxes in determining whether petitioner had a good faith belief that the law did not apply to him. STATEMENT Following a jury trial in the United States District Court for the Western District of Oklahoma, petitioner was convicted on three counts of willfully attempting to evade the payment of federal income taxes during 1982, 1983, and 1984, in violation of 26 U.S.C. 7201. Petitioner was sentenced to a three-year prison term on Count One and to a consective five-year term, execution of which was suspended, on Counts Two and Three. 1. Petitioner's attorney, Jeffrey Dickstein, filed ten pretrial motions, including two separate motions to dismiss the indictment charging petitioner with tax fraud. The first motion to dismiss, which was 84 pages long, argued, inter alia, that federal criminal jurisdiction extends only to acts committed in the District of Columbia, on the high seas, or on federal property; that federal income taxes must be direct and apportioned to be constitutional; that the Sixteenth Amendment authorizes an income tax only within the District of Columbia and the territorial possessions of the United States; and that the defendant is not an "individual" subject to taxation under the Internal Revenue Code. Pet. App. Item i at 6-7. The second motion to dismiss asserted that the indictment was deficient because the tax forms that petitioner failed to file did not have expiration dates and, therefore, violated the Paperwork Reduction Act, 44 U.S.C. 3501-3520. Petitioner also moved to strike as surplusage allegations in the indictment that he had failed to file income tax returns and to pay income tax. A fourth motion sought to suppress all evidence obtained pursuant to a third-party summons issued by an IRS agent. Pet. App. Item i at 7. The district court denied each of the pretrial motions and ordered Dickstein to show cause why the court should not revoke his pro hac vice admission. The district court subsequently revoked Dickstein's admission and removed him from the case, noting that the pleadings he had filed showed that "permitting his future participation will obscure the issues, engulf the case with frivolity, and deflect the proceedings from their object -- the orderly determination whether defendant has broken the law." Pet. App. Item i at 9. 2. At trial, petitioner, who represented himself, claimed that he believed he was not required to file tax returns or pay taxes, even though he earned between $35,000 and $50,000 during the years in question. His primary contention was that he believed that wages received in exchange for labor are not subject to taxation. Pet. App. Item i at 2-3. The district court instructed the jury on petitioner's good faith defense as follows: (B)oth the offenses charged in the indictment and the lesser included offenses require proof of the accused's willfulness as an essential element. * * * If the accused's actions or failure to act was the result of a good faith misunderstanding as (to) the requirements of the law, then the actions or failure to act were not "willful." * * * * * An accused's disagreement with the law or his own belief that the law should be held to be unconstitutional -- no matter how earnestly he holds those beliefs -- is not a good faith misunderstanding of the law. On the other hand, the accused may hold beliefs concerning his duties under the law which, although not reasonable, are held in good faith. Such a good faith belief is a defense to the charges in the indictment as well as lesser included offenses. * * * * * (I)f the defendant held a good faith belief that the law did not apply to him, he would not have acted willfully as he is charged. This is so whether or not the defendant's belief was reasonable. However, if you regard his belief as being highly unreasonable, you may consider this along with all other evidence on the question of whether his belief was indeed genuine or merely feigned or made-up. Pet. App. Item i at 3-4. 3. The court of appeals affirmed petitioner's convictions. It first rejected petitioner's contention that the good faith instructions "confused the jury by improperly focusing its inquiry on the objective reasonableness of (petitioner's) belief instead of whether such belief was genuine." Pet. App. Item i at 4. In this case, the court explained, the district court specifically instructed the jury that petitioner's "subjective belief that he was not obligated to pay taxes did not have to be reasonable to effectuate a valid good faith defense." Id. at 5. The court of appeals further held that the district court did not err by adding that "the objective reasonableness of (petitioner's) belief could be considered, along with other evidence, in determining whether his subjective belief was genuine." Ibid. The court of appeals also rejected petitioner's contention that the district court violated his Sixth Amendment rights when it removed Dickstein from the case. Reviewing the district court's removal decision de novo, the court of appeals concluded that "the district court correctly balanced (petitioner's) right to retain counsel of his choice against society's need for the orderly administration of justice and the ethical practice of law." Pet. App. Item i at 19, 33. In support of that conclusion, the court of appeals noted that Dickstein's "hackneyed" jurisdictional arguments had been uniformly rejected by many other courts as "silly" and "frivolous," and stated that "(a)rgument reflecting such contemptuous disregard for established legal authority has no place within this circuit." Id. at 20, 21, 22-23. Likewise, the court of appeals found Dickstein's Paperwork Reduction Act argument to be "legally frivolous." Id. at 26. With respect to Dickstein's motion to strike from the indictment the allegations that petitioner had failed to file tax returns or pay income taxes, the court concluded that Dickstein would not be able to provide competent representation if he did not realize that such allegations were essential elements of the crimes charged. Id. at 27. Dickstein's argument that the evidence acquired by means of the third party summons should be suppressed was based on the contention that IRS agents are not authorized to issue such summonses, a contention that had no basis in light of a 1986 IRS delegation order. While ignorance of the IRS delegation order would not be grounds for disqualification, the court of appeals noted that Dickstein previously had made the identical argument in a similar tax evasion case in Kentucky, and the argument had been rejected on the basis of the 1986 order. The court of appeals concluded that "the failure to disclose known dispositive contrary authority precluded Dickstein from providing competent and ethical representation to the defendant." Pet. App. Item i at 29. ARGUMENT 1. Petitioner first renews his contention (Pet. 10-12) that the revocation of Dickstein's pro hac vice admission violated his Sixth Amendment right to counsel because it was neither necessary to protect the integrity of the judicial process nor warranted under the facts of the case. In his view (id. at 11), the "filing of motions, however voluminous or logically flawed," is not the sort of conduct that merits disqualification of an attorney. Petitioner's position is meritless. As noted by the court of appeals (Pet. App. Item i at 11), "while the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Wheat v. United States, 486 U.S. 153, 159 (1988). Contrary to petitioner's contentions, Dickstein's filings were not merely "voluminous or logically flawed." As found by both courts below, four of the pretrial motions violated the applicable rules of professional responsibility. Dickstein ignored and misrepresented governing legal principles, knowingly failed to cite applicable legal precedent, and made patently frivolous arguments to the court. It was entirely appropriate and consonant with principles of sound judicial administration for the trial court to remove Dickstein in light of that conduct. Indeed, the court of appeals agreed with the district court that Dickstein's filings showed that he would have afforded petitioner incompetent rather than effective assistance of counsel. Pet. App. Item i at 27, 29. The decision of the court of appeals does not conflict with the decision of any other court of appeals. Thus, petitioner's Sixth Amendment claim does not warrant review by this Court. 2. Petitioner also contends (Pet. 12-14) that the district court gave an improper instruction on his good faith defense. His argument is untenable. The trial court's instruction comports exactly with the recent teaching of this Court in Cheek v. United States, 111 S. Ct. 604 (1991). It is error to instruct a jury in a tax fraud case that a good faith belief must be objectively reasonable. Id. at 611. In this case, the trial court instructed the jury: "(I)f the defendant held a good faith belief that the law did not apply to him, he would not have acted willfully as charged. This is so whether or not the defendant's belief was reasonable." Pet. App. Item i at 3-4. Thus, the jury was told explicitly that petitioner's belief did not have to be reasonable to constitute a good faith defense. Contrary to petitioner's assertion (Pet. 14), it was entirely appropriate for the court additionally to instruct the jury that "if you regard his belief as being highly unreasonable, you may consider this along with all the other evidence on the question whether his belief was indeed genuine or merely feigned or made-up." Pet. App. Item i at 4. That instruction is consistent with this Court's statement in Cheek v. United States, 111 S. Ct. at 611-612, that "the more unreasonable the asserted beliefs or misunderstandings are, the more likely the jury will consider them to be nothing more than disagreement with known legal duties imposed by the tax laws and will find that the Government has carried its burden of proving knowledge." Petitioner contends (Pet. 13-14) that the instruction was contrary to United States v. Mann, 884 F.2d 532 (10th Cir. 1989). But as noted by the court of appeals (Pet. App. Item i at 4), the Tenth Circuit stated in Mann that "although not itself the standard by which to evaluate good faith, the reasonableness of a good-faith defense is a factor which the jury may properly consider in determining whether a defendant's asserted beliefs are genuinely held." United States v. Mann, 884 F.2d at 537 n.3. In any event, an intra-circuit conflict does not merit review by this Court. Wisniewski v. United States, 353 U.S. 901 (1957). That is particularly so when this Court has addressed the issue recently, as it did in Cheek v. United States. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General SHIRLEY D. PETERSON Assistant Attorney General ROBERT E. LINDSAY ALAN HECHTKOPF BRETT DIGNAM Attorneys APRIL 1991