United States v. Lawrence, Robert , 217 F. App'x 553 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 5, 2007
Decided March 1, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-3205
UNITED STATES OF AMERICA, ] Appeal from the United
] States District Court for
Plaintiff-Appellee, ] the Central District of
] Illinois, Peoria Division
]
v. ] No. 06 CR 10019
]
]
ROBERT LAWRENCE, ]
] Michael H. Mihm,
Defendant-Appellant. ] Judge.
ORDER
On March 16, 2006 , a federal grand jury indicted Robert Lawrence on three
counts of tax evasion under 26 U.S.C. § 7201 and three counts of willful failure to
file income taxes under 26 U.S.C. § 7203, relating to the years 1999, 2000, and
2001. Shortly before trial, the government discovered an error in computing the tax
amount due. Although that error impacted only some of the counts, the government
inexplicably filed a motion to dismiss the indictment, and the district court granted
the motion to dismiss with prejudice. Lawrence’s response to this fortuitous turn of
No. 06-3205 2
events was to file a motion for attorney’s fees and costs under the Hyde
Amendment.
The Hyde Amendment provides that “the court ... may award ... a reasonable
attorney’s fee ... where the court finds that the position of the United States was
vexatious, frivolous or in bad faith ....” Pub.L. No. 105-119, § 617, 111 Stat. 2519(1997) (reprinted in 18 U.S.C. § 3006A , historical and statutory notes). Lawrence
argues that the government acted in bad faith or in a vexatious or frivolous manner
in obtaining the indictment and pursuing the criminal case.
According to Lawrence, the Paperwork Reduction Act of 1995 (PRA) required
the Internal Revenue Service to display valid Office of Management and Budget
(OMB) numbers on its Form 1040 and the1040 tax form does not in fact contain a
valid OMB number. Lawrence argues that the PRA by its terms prohibits the
government from imposing a criminal penalty upon a citizen for the failure to
complete a form where the information request at issue does not comply with the
PRA. Lawrence never explains how this argument is even relevant to the three
counts involving tax evasion, but even as to the other three counts, it must fail.
Although Lawrence recites the meaning of vexatious, frivolous and bad faith
in an extensive quote of the government’s filing, Lawrence fails to set forth how
those terms are met by the alleged conduct here. Lawrence’s brief represents an
attempt to prove that the PRA could present a valid defense to the criminal charges.
Yet Lawrence conceded at oral argument that no case from this circuit establishes
such a proposition, and in fact Lawrence cites to no caselaw from any jurisdiction
that so holds. In contrast, the government referenced numerous cases supporting
its position that the PRA does not present a defense to a criminal action for failure
to file income taxes, including: Salberg v. United States, 969 F.2d 379 (7th Cir. 1992);
United States v. Neff, 954 F.2d 698 (11th Cir. 1992); United States v. Kerwin, 945
F.2d 92 (5th Cir. 1991); United States v. Hicks, 947 F.2d 1356 (9th Cir. 1991); and
United States v. Wunder, 919 F.2d 34 (6th Cir. 1990). Nor is the correctness of
Lawrence’s position evident from the language of the PRA itself. Lawrence provides
no explanation for how government conduct can be vexatious, frivolous, or in bad
faith when there is no law contrary to it.
Lawrence’s own definition of those terms is instructive. He notes that:
vexatious means “without reasonable or probable cause or excuse,” United States v.
Gilbert, 198 F.3d 1293, 1298 (11th Cir. 1999); frivolous means “groundless,” as where
“the government’s position was foreclosed by binding precedent,” United States v.
Braunstein, 281 F.3d 982, 995 (9th Cir. 2002); and bad faith is “not simply bad
judgment or negligence, but rather ... the conscious doing of a wrong because of
dishonest purpose or moral obliquity,” United States v. True, 250 F.3d 410, 423 (6th
No. 06-3205 3
Cir. 2001). He then spends the majority of his brief refuting the applicability of the
numerous cases cited by the government. His refutation consists mainly of the
argument that those cases addressed an earlier version of the PRA, but he makes
no effort to explain how the reasoning in those cases is no longer relevant in light of
the amendments to the PRA. His attempts at refuting those cases thus ring hollow,
but that ultimately would not matter. Lawrence cannot simply argue that the
government was wrong; he must argue that they are so wrong that the criminal
case was vexatious, frivolous or in bad faith, and that the district court erred in
holding otherwise. He has no case support for his argument that the PRA so clearly
foreclosed the criminal action as to render the conduct vexatious, frivolous or in bad
faith, nor does the language of the PRA establish that proposition. And that is all
that matters in this appeal. That failure renders the myriad other arguments
raised by the government irrelevant. It matters not whether the 1040 tax form in
fact included a valid OMB number, because that is not the issue in this Hyde
Amendment appeal. Nor does the standard of review ultimately matter here,
because the appeal would fail regardless of the standard employed.
Lawrence makes a secondary argument which, as far as we can discern,
asserts that the indictment did not charge a triable offense because it failed to
reference the statutory requirement to file a tax return. A similar argument was
rejected in Sloan v. United States, 939 F.2d 499, 501-03 (7th Cir. 1991), and
Lawrence makes no effort to distinguish that case. In fact, Lawrence again supplies
no case support for his argument, let alone any cases establishing that the
inadequacy of the indictment was so clear as to render the government’s conduct
vexatious, frivolous or in bad faith. The district court properly denied the request
for attorney’s fees under the Hyde Amendment. AFFIRMED.