First Circuit Rejects Tax Defier's Complaints About IRS Packing Heat and Improper Good Faith Defense Instructions (1/15/14)

In United States v. Adams, 740 F.3d 40 (1st Cir. 2014), here, the court affirmed the defendant's conviction, rejecting two interesting arguments -- one about IRS agents' authority to pack heat while executing a search warrant and the other, the common claim that the district court erred in rejecting the defendant's proffered good faith instruction.

The opinion is short and well written.  The introduction is as follows:

Defendant-appellant Charles Adams, an unabashed opponent of the tax laws, advances two discrete claims of error regarding his convictions on charges of conspiracy and tax evasion. One claim, which raises a question of first impression at the federal appellate level, implicates the lawfulness of a premises search conducted by armed agents of the Internal Revenue Service (IRS). The other claim challenges the district court's jury instructions. After careful consideration, we reject his claims and affirm the judgment below.

1.  Packing Heat -- Still Unsettled.

Just so the terminology is meaningful, I mean this in one of the senses I found on the Urban Dictionary, here:  "To carry a firearm. Usually refers to the act of carrying a handgun."  (There are other definitions there, some of which are only metaphorically related to guns.)  The court's discussion of this issue is:

 On March 19, 2004, a magistrate judge issued a warrant that authorized the search of the defendant's home in Wrentham, Massachusetts. Four days later, armed IRS agents executed the warrant and seized evidence that the government later used against the defendant. 

During pretrial skirmishing, the defendant moved to suppress this evidence. Pertinently, he asserted that the search was unlawful because the manner of its execution was not authorized by statute. The defendant based this assertion on 26 U.S.C. § 7608 [here], which deals with the "[a]uthority of internal revenue enforcement officers." 

The defendant's argument takes the following shape. Subsection (a) of the statute, which deals with IRS enforcement of laws pertaining to alcohol, tobacco, and firearms, explicitly allows agents enforcing those laws to carry guns. See 26 U.S.C. § 7608(a)(1). Subsection (b), which deals with IRS enforcement of other tax laws, contains no similar grant of explicit permission to carry guns. The defendant posits that the absence of any such explicit permission in subsection (b) indicates Congress's intent to prohibit IRS agents enforcing those laws from carrying firearms. See United States v. Hernández-Ferrer, 599 F.3d 63, 67-68 (1st Cir. 2010) (discussing principle of expressio unius est exclusio alterius). And because the agents who searched his home were armed and not investigating any offense involving alcohol, tobacco, or firearms, the defendant argues that the search was unlawful and the evidence seized should therefore be suppressed.

The defendant's theory is a novel one, and the district court was skeptical of it. In the end, the court elected to detour around the statutory construction question. Instead, the court assumed a statutory violation but held that suppression was not an appropriate remedy. This prudential approach makes eminently good sense: as we recently wrote, "[d]iscretion is often the better part of valor, and courts should not rush to decide unsettled legal issues that can easily be avoided." United States v. Gonzalez, 736 F.3d 40, 40 (1st Cir. 2013). Thus, we too assume without deciding that the agents who executed the search of the defendant's home violated 26 U.S.C. § 7608 because they were armed. 

Suppression of evidence is strong medicine, not to be dispensed casually. The question of whether exclusion of evidence is an available remedy for a particular violation is a question of law and, therefore, is subject to de novo review. See United States v. Garcia-Hernandez, 659 F.3d 108, 111 (1st Cir. 2011); United States v. Leahey, 434 F.2d 7, 10 (1st Cir. 1970). In conducting this inquiry, we remain mindful that "[t]he exclusionary rule was not fashioned to vindicate a broad, general right to be free of agency action not 'authorized' by law, but rather to protect certain specific, constitutionally protected rights of individuals." United States v. Hensel, 699 F.2d 18, 29 (1st Cir. 1983); accord United States v. Henry, 482 F.3d 27, 32 (1st Cir. 2007). The cases in which the Supreme Court has approved a suppression remedy for statutory violations are hen's-teeth rare, and "[i]n those cases, the excluded evidence arose directly out of statutory violations that implicated important Fourth and Fifth Amendment interests." Sanchez-Llamas v. Oregon, 548 U.S. 331, 348 (2006). We conclude, therefore, that statutory violations, untethered to the abridgment of constitutional rights, are not sufficiently egregious to justify suppression.2 See United States v. Thompson, 936 F.2d 1249, 1251 (11th Cir. 1991) (collecting cases). 

The defendant resists this conclusion. He contends that the performance of the search by armed agents constituted an unreasonable intrusion into his dwelling. This contention lacks force. 

Whatever intrusion may have occurred was not of constitutional dimension. While the defendant assuredly had a constitutionally protected privacy interest in his home, see, e.g., Georgia v. Randolph, 547 U.S. 103, 115 (2006); Payton v. New York, 445 U.S. 573, 585-86 (1980), that interest is protected in the first instance by the warrant requirement of the Fourth Amendment — a requirement that was fully satisfied in this case. The defendant has not challenged the validity of the warrant, and the warrant authorized the agents to enter the home and conduct the search. 

We add, moreover, that the fact that the agents were armed had no impact either on the scope of the search or on the extent of the evidence collected. Indeed, the record here does not show the slightest connection between the alleged statutory violation and the avails of the search. So viewed, the supposed violation was not a but-for cause of procuring the evidence. The Constitution was not implicated and suppression was, therefore, unwarranted. See Hudson v. Michigan, 547 U.S. 586, 592 (2006); United States v. Thomas, 736 F.3d 54, 59 (1st Cir. 2013). 

The defendant seeks to reboot his argument in two ways. Both maneuvers are futile.

[First reboot argument omitted] 

The defendant's second maneuver — his reliance on our decision in United States v. Leahey — is equally unavailing. There, agents violated a publicly announced IRS procedure by eliciting evidence from the defendant without warning her that they were conducting an investigation into possible criminal tax fraud. See Leahey, 434 F.2d at 11. We determined that the IRS had promulgated the procedure for the purpose of promoting uniform conduct among its agents and protecting taxpayers' rights in the wake of the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436 (1966). See Leahey, 434 F.2d at 8, 10. Because the agency had purposefully announced the procedure to the public, it could be reasonably expected that taxpayers would rely on the agents' compliance with the procedure in their dealings with the IRS. The agents' failure to comply thus implicated the defendant's due process rights. See id. at 10-11. We emphasize, moreover, that there was a strong connection between the violation of the procedure and the gathering of the disputed evidence. Consequently, suppression of the evidence was an appropriate anodyne. See id. at 11. The situation at hand is at a considerable remove from the situation in Leahey. Here, there is no inkling that the statute was enacted to protect taxpayers' constitutional rights; n3 and in addition, the defendant's constitutional rights were in no way offended by the manner in which the search warrant was executed. For these reasons, Leahey is inapposite.
   n3 Representative Mills, one of the floor managers of the bill, described the amendment that was codified as section 7608(b) as "entirely a procedural or administrative amendment. It would extend to criminal investigators of the Intelligence and Internal Security Divisions of the [IRS] the same authority under present law for Alcohol and Tobacco Tax Division employees relating to the power to execute and serve search and arrest warrants." 108 Cong. Rec. 23,367 (1962).

II.  Good Faith Defense Instructions

Often in criminal tax cases, the Government has the goods on the defendant and the defendant's only hope is that the jury may credit him with good faith, which is a complete defense to willfulness required for most tax crimes.  So, obtaining favorable instructions emphasizing the defense is very important.  A defense attorney will work hard to draft that most favorable good faith defense instruction that he thinks the judge will approve.  Determining just where the tipping point will be for judge and avoiding that tipping point is an art form.  But, the defense will always prefer the instruction it proffered.  And will often complain when the judge rejects it in favor of some less favorable instruction (at least from defense perspective).  The defendant will then appeal when the jury rejects the defense.  Adams appealed.

On appeal, the defendant argues that the district court's failure to give the more expansive good-faith instructions that he had requested, combined with the periodic instructions given during the trial, undermined his theory of defense. Our review of preserved jury instructions depends on the nature of the error asserted. Generally speaking, we review a district court's construction of law de novo and its choice of language and emphasis for abuse of discretion. See United States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012). Of course, "[e]ven an incorrect instruction to which an objection has been preserved will not require us to set aside a verdict if the error is harmless." Id. Thus, a district court's "refusal to give a particular instruction constitutes reversible error only if the requested instruction was (1) correct as a matter of substantive law, (2) not substantially incorporated into the charge as rendered, and (3) integral to an important point in the case." United States v. McGill, 953 F.2d 10, 13 (1st Cir. 1992). 

The main bearing wall of this claim of error is what the district court did not do: the defendant laments that the court did not give in haec verba the specific instructions that he requested. These proffered instructions included repeated elaborations of the good-faith defense. 

This claim of error crumples when we shift the lens of our inquiry to what the district court actually did. We have never required district courts to embellish good-faith instructions with an array of bells and whistles. To the contrary, we have on several occasions approved simple and straightforward statements of the underlying legal principle. See, e.g., United States v. Allen, 670 F.3d 12, 17-18 (1st Cir. 2012); United States v. Anthony, 545 F.3d 60, 66 (1st Cir. 2008); McGill, 953 F.2d at 12-13. Here, the court gave an accurate instruction on good faith and its relation to intent before launching into the specifics of each count charged. Critically, as part of a lengthy instruction on intent, the court told the jurors that the "defendant's intent must be determined by a subjective standard . . . . A good-faith but mistaken belief as to what the tax laws require is not enough to have the required knowledge and intent." The court reminded the jurors of this general instruction on intent as it limned the specific elements of each count.n4
   n4 In his reply brief, the defendant adds a refinement: he argues specifically that "it was reversible error not to instruct the jury that the [defendant's] beliefs need not be reasonable if they are actually held in good faith." The district court covered this point in substance. Among other things, the court instructed the jurors that they "must decide what a particular defendant actually knew and believed, not what a reasonable person in his position should have known or believed"; and that "[a] good-faith belief is one that is honestly held." No more was exigible. See, e.g., United States v. Rosario-Peralta, 199 F.3d 552, 568 (1st Cir. 1999) ("Because the district court's instructions adequately covered defendants' theory of defense, there was no error in declining to give their proposed instruction."). 

To be sure, the defendant obviously would have preferred to have the court parrot his own language. But the defendant was not entitled to put his words into the judge's mouth. Here, as in McGill, 953 F.2d at 12, the court "spurn[ed] the exact phraseology which the appellant sought," but it "accurately communicated the meat of the defense's theory" to the jury. Because the defendant's proffered instructions were "substantially incorporated into the charge as rendered," they do not support his claim of error. Id. at 13.

[Balance omitted]

I am not sure that the quoted instructions as given really capture the well-established law that good faith can exist even if the construction of the law is objectively unreasonable (as it was in Cheek).  The standard dodge is the instructions given were adequate  if not perfect.