United States v. Roccio

• Court: Court of Appeals for the First Circuit
• Decided: December 14, 1992
• Docket: 92-1193
• Status: Published

Opinion

USCA1 Opinion

December 14, 1992

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                _____________________

No. 92-1193 

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                   RICHARD ROCCIO,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                    [Hon. Raymond J. Pettine, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                              Torruella, Circuit Judge,
                                         _____________

                            Coffin, Senior Circuit Judge,
                                    ____________________

                              and Boudin, Circuit Judge.
                                          _____________

                                _____________________

               Richard Roccio on brief pro se.
               ______________
               Anthony  C. DiGioia,  Assistant United  States  Attorney and
               ___________________
          Lincoln C. Almond, United States Attorney, on brief for appellee.
          _________________

____________________

____________________

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.
                                                                  ________

          Notwithstanding appellant's difficulties with counsel,  we affirm

          his conviction.

                                        FACTS
                                        FACTS
                                        _____

                    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.
                                                              ______

                    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
                                    ______________

                                          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.
                       ______________    ______

          1991).  Because this  claim is fact specific, it should be raised

          before the trial  court.   United States v.  Hunnewell, 891  F.2d
                                     _____________     _________

          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
                          _____________    _______

          Cir. 1991), cert. denied, 112 S. Ct. 986 (1992).
                      ____________

                    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
                                           _____________     ________

          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
                                                              ___

          United  States v.  Main, 598  F.2d 1086,  1090 (7th  Cir.), cert.
          ______________     ____                                     _____

          denied,  444 U.S. 943  (1979)).  Challenges to  the legality of a
          ______

          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.
          _____________     ________                                  _____

          denied, 392 U.S. 931 (1968)).   Such other considerations include
          ______

          the legality of the  underlying lien or assessment.   Id. (citing
                                                                ___

          United States v. Oliver, 421 F.2d 1034, 1036 (10th Cir. 1970)).
          _____________    ______

                    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,
                                    __________    __________

          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
                           ________

          validity of the underlying tax liability is therefore irrelevant.

          Id.  Appellant's arguments  concerning counsel's alleged  failure
          ___

          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
                                ________                     ____

          at 1090;   United States v.  Harris, 521 F.2d 1089,  1092-93 (7th
                     _____________     ______

          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
                                    ______

          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.
                                                         ______________

          Sanders, 862 F.2d 79, 83 (4th Cir. 1988).
          _______

                    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)
          ___  _____________     ______

          ("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.
                            ______                            _______

          We  note that  the  facts which  gave rise  to the  conviction in

          Harris are duplicated almost identically in this case.
          ______

                    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
                                                             ____    ______

          States, 389 U.S. 347, 351 (1967).  Relying on this precedent, the
          ______

          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.
                            _______    _______

          1991), cert. denied, 112 S. Ct. 1957 (1992).  In this circuit, we
                 ____________

          also  have held  that there  is no  expectation of  privacy in  a

          driveway that is exposed to the public.  United States v. Hensel,
                                                   _____________    ______

          699 F.2d 18,  32-33 (1st Cir.), cert. denied, 464 U.S. 823 (1983)
                                          ____________

          (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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