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USCA1 Opinion
December 14, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1193
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD ROCCIO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Richard Roccio on brief pro se.
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Anthony C. DiGioia, Assistant United States Attorney and
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Lincoln C. Almond, United States Attorney, on brief for appellee.
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TORRUELLA, Circuit Judge. This appeal requires us to
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review appellant's attempt to retake an automobile seized by the
Internal Revenue Service ("I.R.S."). Appellant believes the
I.R.S. had no right to seize the car in the first place.
Appellant was convicted in the district court of forcible rescue
of property in violation of 26 U.S.C. 7212(b), sentenced to ten
months in prison and one year of supervised release, and received
a $10,000 fine and a special assessment of $50.00. In the course
of these proceedings, appellant has rejected the services of
three attorneys and appears before us now pro se.
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Notwithstanding appellant's difficulties with counsel, we affirm
his conviction.
FACTS
FACTS
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Appellant has not filed a tax return since the late
1970's due to his belief that the United States income tax system
is based on voluntary compliance. Appellant insists that under
his own assessment, he owed no taxes during this period.
Appellant's failure to file an income tax return in 1981 came to
the I.R.S.'s notice in the mid-1980's, when they sent appellant
four demands to file, and a notice of deficiency. Receiving no
response to any communication, the I.R.S. assessed taxes,
interest and penalties on appellant for 1981, and filed a federal
tax lien for that amount in West Warwich, Rhode Island,
appellant's home town.
The I.R.S. summoned appellant to the local I.R.S.
office for questioning about his finances during the 1981 tax
year. Knowing that the I.R.S. could seize his assets, appellant
drove to the meeting in his girlfriend's car rather than in his
only asset, a 1977 Mercedes-Benz 450 SLC. Appellant brought
along the records requested in the summons, but refused to show
them to the investigating officer at the hearing.
Appellant was not aware that, during the meeting,
I.R.S. agents had recorded the license plate of his girlfriend's
car and then were able to trace her address. Four I.R.S. agents
went to this address on July 3, 1991, where they saw his
automobile parked in an unobstructed driveway. The agents
entered the property without a warrant; one went to the front
door, while the others went directly to the Mercedes. When no
one answered the door, one of the agents proceeded to sign and
place two seizure notices on the car. These notices announced,
in large letters, "WARNING," and continued "[t]his property has
been seized for nonpayment of internal revenue taxes, by virtue
of levy . . . . All persons are warned not to remove or tamper
with this property, in any manner, under severe penalty of the
law." One of the agents then went to call a tow truck.
Appellant appeared before the tow truck arrived. One
of the agents identified herself, handed appellant a notice of
levy and informed appellant that they had seized the car.
Appellant apparently rejected the notice of levy, returning it to
the agent without looking at it. He then approached the car,
removed the seizure notices, and asked if he had broken any laws.
An agent informed appellant that he had not yet violated any
criminal laws, but that removal of the vehicle would give rise to
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criminal sanctions. Appellant asked the agent if he could remove
some personal belongings from the car, and the agent assented.
Appellant entered the house and returned momentarily. An agent
attempted to give him a notice of seizure, and again appellant
refused to receive any paper from the agents. Appellant got in
the car, an agent informed him again that removal would be a
criminal violation, and as he pulled away from the house,
appellant said that he would take his chances. The automobile
has not been seen since.
Appellant subsequently was indicted by a grand jury on
one count of forcible rescue of property under 26 U.S.C.
7212(b). A court-provided attorney represented appellant in a
suppression hearing and at trial. At the suppression hearing,
appellant's attorney conceded that appellant owed some amount of
taxes. At trial, counsel allegedly failed to present appellant's
argument to the effect that the seizure was illegal because
appellant owed no taxes. As previously noted, the jury found
appellant guilty of forcible rescue of property.
On the basis of appellant's dissatisfaction with
counsel's performance at the hearing and at trial, appellant
sought a new court-provided attorney. The court expressed
satisfaction with counsel's performance but allowed appellant a
new attorney anyway. The new attorney represented appellant at
sentencing. Following appellant's dissatisfaction with the
second attorney's performance, however, appellant sought a third
court-provided attorney for this appeal. Shortly before
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argument, appellant sought leave to dismiss the third attorney,
which leave was granted, and now represents himself pro se.
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Appellant raises several claims challenging the
legality of the seizure. Appellant first alleges violations of
his right to effective assistance of counsel in that counsel
failed to present certain defenses related to appellant's
perceived nonliability for taxes. Appellant also alleges that
counsel paid inadequate attention to appellant's self-styled
views on taxation. Appellant next claims that the district court
improperly refused to allow appellant to testify as to his theory
of nonliability. Appellant's third argument claims that the
I.R.S. failed to follow its own procedures in effecting the
seizure, and that this failure invalidated the seizure.
Specifically, appellant argues that the I.R.S. failed to use
"Form 17," a form pertaining to liens, and that "Form 17" is a
necessary predicate to an I.R.S. levy and seizure. Appellant
finally alleges violations of his Fourth Amendment right to
freedom from unreasonable searches and seizures.
LEGAL ANALYSIS
LEGAL ANALYSIS
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I.
A defendant ordinarily may not raise a claim of
ineffective assistance of counsel in a direct appeal of his
conviction. United States v. McGill, 952 F.2d 16, 19 (1st Cir.
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1991). Because this claim is fact specific, it should be raised
before the trial court. United States v. Hunnewell, 891 F.2d
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955, 956 (1st Cir. 1989). We permit review on direct appeal,
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however, when the critical facts are not in dispute and the
record is sufficiently developed to allow reasoned consideration
of the claim. United States v. Natanel, 938 F.2d 302, 309 (1st
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Cir. 1991), cert. denied, 112 S. Ct. 986 (1992).
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Appellant did not raise his claim of ineffective
assistance of counsel before the district court. Nonetheless, we
have jurisdiction to review his claim because, as we explain
below, the defenses that trial counsel allegedly failed to
present are irrevelant to the crime of forcible rescue of
property. We therefore may decide the appeal on the record.
II.
Section 7212(b) defines the crime of forcible rescue of
property as follows:
"Any person who forcibly rescues or causes to be
rescued any property after it shall have been
seized under this title, or shall attempt or
endeavor so to do, shall, excepting in cases
otherwise provided for, for every such offense, be
fined not more than $500, or not more than double
the value of the property so rescued, whichever is
the greater, or be imprisoned not more than 2
years."
To support a conviction of forcible rescue of property, the
seizure must have been legal. United States v. Hardaway, 731
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F.2d 1138, 1140 (5th Cir. 1984). Legality depends only on
whether "it was performed by a proper official with general
authority under the tax code to make the seizure." Id. (quoting
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United States v. Main, 598 F.2d 1086, 1090 (7th Cir.), cert.
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denied, 444 U.S. 943 (1979)). Challenges to the legality of a
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seizure based on other considerations must fail. Id. (citing
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United States v. Scolnick, 392 F.2d 320, 326 (3d Cir.), cert.
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denied, 392 U.S. 931 (1968)). Such other considerations include
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the legality of the underlying lien or assessment. Id. (citing
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United States v. Oliver, 421 F.2d 1034, 1036 (10th Cir. 1970)).
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In this case, there is no dispute that the agent who
conducted the seizure of appellant's car on July 3, 1991 was
authorized to do so in his position as an I.R.S. collections
officer. The seizure therefore was legal for the purposes of the
crime of forcible rescue of property.
Appellant's arguments of ineffective assistance of
counsel at trial, due to counsel's admission of tax liability and
to counsel's alleged conflicts with appellant's views on
taxation, do not assist appellant. To succeed in an ineffective
assistance claim, a party must show that "deficient performance
prejudiced the defense." Strickland v. Washington, 466 U.S. 668,
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688 (1984). Appellant cannot show that he was prejudiced by
trial counsel's admission of tax liability, because a showing of
tax liability is not an element of the forcible rescue of
property crime. Hardaway, 731 F.2d at 1140. A challenge to the
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validity of the underlying tax liability is therefore irrelevant.
Id. Appellant's arguments concerning counsel's alleged failure
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to present seriously appellant's views on taxation also relate
to issues irrelevant to this case. Had appellant prevailed on
counsel to present these views on taxation, they would have had
no effect on his conviction.
The court's refusal to permit appellant to testify in
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full at trial concerning his theory of nonliability was similarly
irrelevant. Because tax liability is not an element of the
crime, his attempted testimony could not constitute a defense.
The trial judge properly sustained objections to such testimony.
In addition to the legality of the seizure, the
forcible rescue of property crime requires that a defendant knew
that the property had been seized, and that a defendant forcibly
retook the property. Hardaway, 731 F.2d at 1140; Main, 598 F.2d
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at 1090; United States v. Harris, 521 F.2d 1089, 1092-93 (7th
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Cir. 1975). Two tests exist for whether the rescue is forcible.
Under the first test, any amount of force sufficient to rescue
the property suffices. Harris, 521 F.2d at 1093 (removal of
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warning notices from property was force). Under the second, any
actions which disrupt the constructive possession of the
government constitute sufficient force. United States v.
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Sanders, 862 F.2d 79, 83 (4th Cir. 1988).
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In this case, it is undisputed that the agents informed
appellant, through written notices and by oral communication,
that the Mercedes had been seized. Even if the agents did not
use Form 17, which appellant claims was required, appellant was
repeatedly warned that his car had been seized and that removing
it would be a crime. Contrary to appellant's claim, though, the
Internal Revenue Code does not mandate the use of any specific
form of notice. 26 U.S.C. 6303(a); 26 C.F.R. 301.6301-1(a);
see United States v. Schiff, 919 F.2d 830, 833 (2d Cir. 1990)
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("Form 17" not required to effectuate lien). Thus, appellant had
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the knowledge necessary to support a conviction for this crime.
Furthermore, appellant removed the warning notices from
the car and drove off with it. These actions constituted force
sufficient to rescue the property for the purposes of this crime
under either the Harris test or the more liberal Sanders test.
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We note that the facts which gave rise to the conviction in
Harris are duplicated almost identically in this case.
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We turn now to appellant's argument concerning the
warrantless seizure of his car. We find this argument equally
without merit. The Supreme Court continually has held that "what
a person exposes to the public, even in his own home or office,
is not a subject of Fourth Amendment protection." Katz v. United
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States, 389 U.S. 347, 351 (1967). Relying on this precedent, the
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Ninth Circuit has held that the I.R.S. may conduct a warrantless
seizure of an automobile from a driveway which has no indicia of
privacy, such as an enclosure, barrier, or lack of visibility
from the street. Maisano v. Welcher, 940 F.2d 499, 503 (9th Cir.
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1991), cert. denied, 112 S. Ct. 1957 (1992). In this circuit, we
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also have held that there is no expectation of privacy in a
driveway that is exposed to the public. United States v. Hensel,
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699 F.2d 18, 32-33 (1st Cir.), cert. denied, 464 U.S. 823 (1983)
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(license plate on automobile visible from street was admissible
evidence).
These clearly established precedents lead us to the
conclusion that appellant's automobile was seized in an area in
which he had no expectation of privacy. It is undisputed that
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appellant's Mercedes was clearly visible from the street on an
unobstructed driveway. As such, the I.R.S. agents needed no
warrant to seize the automobile, and appellant suffered no Fourth
Amendment violation due to the warrantless seizure. The district
court judge therefore correctly admitted evidence of the seizure
at trial.
Affirmed.
Affirmed.
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Document Info
Docket Number： 92-1193
Filed Date： 12/14/1992
Precedential Status： Precedential
Modified Date： 9/21/2015