Thomas v. United States , 93 F. App'x 238 ( 2004 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1850
RICHARD J. THOMAS,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Richard J. Thomas, on brief pro se.
Frank P. Cihlar and Janet A. Bradley, Attorneys, Tax Division,
Department of Justice and Eileen J. O'Connor, Assistant Attorney
General, on brief for appellee.
March 16, 2004
Per Curiam. Pro se appellant Richard J. Thomas appeals from
the district court's decision denying his motions to quash certain
summonses issued by the Internal Revenue Service ("IRS") and
partially enforcing such summonses. See Thomas v. United States,
254 F. Supp. 2d 174 (D. Me. 2003). We affirm for the following
reasons and impose a sanction for the frivolous appeal.
I. The Appeal
In support of his challenge to the summonses, Thomas makes
various contentions: that IRS personnel told him that he could
determine his own tax liability; that certain codes in IRS
documents showed that he had "fully paid" his taxes for 1995 and
1996 and was not required to file returns for the years 1995-2001;
that the IRS had not identified the "particular taxing statute and
implementing regulation" that made him liable for taxes; and that
he had not received an administrative hearing prior to issuance of
the summonses. Thomas has forfeited consideration of these
arguments, however, because he failed to present them to the
district judge in his objection to the magistrate judge's report.
See 254 F. Supp. 2d at 182-83 (notifying Thomas of consequence of
failing to object to "specified portions" of the report); Keating
v. United States, 848 F.2d 271, 274-75 (1st Cir. 1988) (declining
to consider appellate arguments omitted in objection to magistrate
judge's report where the report contained the same cautionary
notice as the instant report).
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Thomas also claims that the district judge and magistrate
judge abused their discretion by failing to obtain expert
assistance to construe certain IRS documents. To the extent he has
not forfeited that claim for reasons given above, he has done so
because he has not developed his argument on appeal. United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("A claim is deemed
waived if it is merely adverted to in a perfunctory fashion,
unaccompanied by some effort at developed argumentation."). In any
event, we perceive no abuse of discretion or error in the
magistrate judge's determination, which the district judge
accepted, that the documents he submitted failed to rebut the IRS's
prima facie case in favor of enforcement.
Finally, Thomas contends that signing a 1040 form under pains
of perjury would be tantamount to coercing him to waive his Fifth
Amendment right not to incriminate himself. We need not consider
that claim -- although we note that it is frivolous -- because he
failed to raise it in the district court. United States v. Ocasio-
Rivera, 991 F.2d 1, 3 (1st Cir. 1993) ("It is a bedrock principle
in this circuit that issues must be squarely raised in the district
court if they are to be preserved for appeal.") (citations
omitted).
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II. Sanctions
In a separate motion, the government asks this court to impose
a $6,000 sanction on Thomas for his frivolous appeal, citing Fed.
R. App. P. 38 and 28 U.S.C. § 1912. It offers evidence that this
sum is less than the average expense ($6,900) it incurred in
attorney salaries and other costs to defend typical frivolous tax
appeals during the 2001-2002 time period. Thomas has opposed the
motion for sanctions, but does not contend that he cannot pay the
amount requested.
We agree with the government that this appeal was frivolous.
At bottom, Thomas contended that he could determine for himself
whether he was subject to federal tax laws, and he claimed that IRS
documents showed that he had "fully paid" his 1995 and 1996 taxes,
although his own reply brief included a Notice of Deficiency that
had been issued with respect to those very years. Otherwise, he
raised only arguments which he himself obviously did not deem
substantial enough to pursue consistently or thoroughly in the
district court or on appeal.
In accordance with a recently published opinion of this court,
Marino v. Brown, No. 03-1835 (1st Cir. Feb. 12, 2004) (per curiam),
we award a $2,000 sanction. We eschew the higher sanction
requested by the government in this instance because Thomas filed
and briefed his appeal before we issued our Marino opinion, which
explicitly warned pro se appellants that filing an "egregiously
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meritless" tax appeal could well result in a sanction "of at least
$4,000[.]" Slip op. at 8.
Affirmed. A sanction of $2,000 is imposed on the appellant.
See Fed. R. App. P. 38; 28 U.S.C. § 1912.
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