Convicted Tax Protestor's Bid for Competency Hearing Fails on Appeal (2/10/20)

In United States v. DiMartino (2d Cir. No. 18-2053-cr 2/4/19), here, the Court of Appeals affirmed a tax protestor conviction described as follows:

Terry DiMartino appeals from a judgment of the United States District Court for the District of Connecticut (Thompson, J.) convicting him for his multi-year failure to pay taxes and for his deception and obstruction of the IRS—conduct inspired by the Sovereign Citizen movement, a loosely affiliated group who "`follow their own set of laws' and, accordingly, `do not recognize federal, state, or local laws, policies or regulations' as legitimate." United States v. McLaughlin, ___ F.3d ___, 2019 WL 7602324, at *1 n.1 (2d Cir. December 30, 2019) (quoting Sovereign Citizens: A growing Domestic Threat to Law Enforcement, FBI Law Enforcement Bulletin (2011)). 

DiMartino, a successful insurance agent, represented himself at trial and was convicted.
After trial and before sentencing, DiMartino retained counsel, who moved for a hearing to determine whether DiMartino had been competent to stand trial. Counsel argued that DiMartino's bizarre conduct before and during trial raised a series of red flags impugning his mental fitness, and submitted a psychological report from Dr. Andrew Meisler, who had interviewed DiMartino and examined part of the trial record.

Basically, on this point, the district court rejected the proffered expert testimony and sustained the denial of the request for a competency hearing based principally on a proffered expert report the district court found lacking.  The Second Circuit affirmed under an abuse of discretion standard.

Some interesting excepts (Slip Op. pp. 12-15):

[T]he district court reasonably inferred from DiMartino’s conduct at trial that he understood the proceedings against him and was capable of participating meaningfully in his defense. Among other things, DiMartino attempted to persuade the jury that he lacked the requisite criminal intent; he solicited the jury’s sympathy; and he made a bid for jury nullification. Lesser participation has sufficed to demonstrate competency. See U.S. v. Sovie, 122 F.3d 122, 128 (2d Cir. 1997) (noting that district court’s conclusion that defendant was a “knowing participant in his defense” was supported by the fact that the defendant “took notes, conversed with counsel, and reacted reasonably to the admission of evidence”). 

Crucially, nearly all the purported red flags concerning DiMartino’s competence relate in one way or another to his insistence on espousing or acting on views that are shared with other adherents to a political ideology, however marginal. At trial, the government presented evidence that the rhetoric DiMartino used in his correspondence with the IRS--and continued to espouse at trial--was typical of groups that resist the federal tax laws. Indeed, an undercover IRS agent observed DiMartino at a 2007 Sovereign Citizen convention in Las Vegas, where he expressed frustration at having to “pa[y] [his] ass up in taxes” and asked seminar participants for advice on how sovereign citizens “that have wealth . . . protect their wealth.” Ex. FBI-1A at 52-53, 86. 

The kinds of unorthodox political and legal theories espoused by DiMartino are not presumptive evidence of mental incompetence. On the contrary, there are many reasons that mentally competent criminal defendants choose to pursue unsupported or even outlandish theories in their defense. For instance, in Clark, the defendant was a self-proclaimed revolutionary freedom fighter; her radical political views, though altogether different from DiMartino’s, similarly inspired her to challenge the legitimacy of the government and the proceedings against her. Clark v. Perez, 510 F.3d 382, 386-88 (2d Cir. 2008).Despite “ample notice” that the defendant would mount a “disruptive, political defense” at trial, the trial court determined that she was competent to proceed to trial and represent herself pro se--a determination that was never challenged.    Id.    

Here, as the district court found, the record suggests that it is at least as likely that DiMartino simply disagreed with the tax laws, as opposed to suffering from a delusional disorder that prevented him from understanding them. DiMartino was a person of affairs who used devious and elaborate means of evasion.    His obsession, though out of the mainstream, was one that promoted his material self-interest. Accordingly, we agree with other circuits that have held that political views derived from tax protester movements--however they appear to the uninitiated--are not, by themselves, sufficient evidence of mental incompetence. See, e.g., United States v. Neal, 776 F.3d 645, 656-57 (9th Cir. 2015) (holding that defendant’s “voluminous filings of nonsensical pleadings [did] not create per se serious doubt about competency” since his conduct was indicative of a “‘sovereign citizen’ belief system” rather than a “lack of competence”); United States v. Brown, 669 F.3d 10, 18 (1st Cir. 2012) (holding that Sovereign-Citizen defendant’s meritless legal arguments “did not evidence confusion on [defendant’s] part about the legal proceedings against him, but rather reflected firmly held, idiosyncratic political beliefs punctuated with a suspicion of the judiciary”). 

Symptoms of actual mental illness may of course coexist with adherence to conspiracy theories or fringe political movements.    On this point, DiMartino relies on Auen, 846 F.2d 872. But Auen does not support the proposition that one who considers himself exempt from taxation is also presumptively exempt from trial. Competency to stand trial is not an issue decided categorically: in Auen, the defendant displayed characteristics that would suggest mental illness regardless of his views of taxation and the constitution. Auen had "paranoid"  beliefs, id. at 878, and had sent a letter containing a thinly veiled death threat to an IRS special agent, id. at 874. The court observed that Auen’s letter, which recounted the murder of a cat named Sweeney, “[could] only be characterized as the product of a disturbed mind.” Id. at 878. 

Here, we cannot say that it was an abuse of discretion to deny DiMartino's motion for a competency hearing. The district court relied on its own observations over the course of the proceedings and carefully weighed the only evidence of incompetency proffered by counsel: Dr. Meisler’s report and the affidavit of a lawyer who formed his opinion based on interviews with his client during the relatively short period between his retention and the filing of the competency motion. See United States v. Kerr, 752 F.3d 206, 218 (2d Cir. 2014), as amended (June 18, 2014) (noting that “the district court had substantially longer experience with [the defendant] over the course of the proceedings” than did stand-by counsel, who represented to the court that his client was acting irrationally).   

JAT Comments:

1.  On the inadequacy of the proffered expert report, those considering this gambit, should read the opinion carefully to avoid the same mistakes.

2.  The Court cites McLaughlin (in an excerpt quoted above) where the Second Circuit expressed skepticism if not displeasure with tax protestors.  Readers may go to the McLaughlin case here.  And, my blog on the case is Second Circuit Opines that Tax Protestor/Defier Arguments for Lack of Criminal Jurisdiction are Bogus (1/1/20), here.